Jorgensen v Fair Work Ombudsman

Jorgensen v Fair Work Ombudsman - [2019] FCAFC 113 - FCAFC 2019 case summary — Zoe

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THE COURT: 1 This is an appeal from orders made in the Federal Circuit Court of Australia which had the effect of convicting the appellant, Mr Leigh Jorgensen, of contempt of court and sentencing him to a period of imprisonment. 2 At the time of the events in question, Mr Jorgensen operated a business which sold tours and adventure activities in Far North Queensland. He appears to have operated that business through a number of different entities and in a fairly disorganised and haphazard way, at least in an administrative and financial sense. He also appears at times to have underpaid his employees. The latter feature of the business brought Mr Jorgensen and at least one of the entities through which he conducted the business, A.C.N. 156 455 828 Pty Limited, trading as Trek North Tours, to the attention of the respondent to this appeal, the Fair Work Ombudsman. The company A.C.N. 156 455 828 Pty Limited is referred to throughout this judgment as 828 Pty Limited to avoid confusion which would otherwise arise because Mr Jorgensen and other companies associated with him also used the trading name Trek North Tours. 3 In late 2014, the Ombudsman commenced proceedings in the Circuit Court against 828 Pty Limited and Mr Jorgensen alleging that 828 Pty Limited had contravened s 716(5) of the Fair Work Act 2009 (Cth) because it had failed to comply with compliance notices issued under that subsection. The compliance notices required 828 Pty Limited to pay a total of $29,956.75 representing the outstanding wages and entitlements of three of its employees. The Ombudsman also alleged that Mr Jorgensen was involved in the contraventions by 828 Pty Limited. Judgment was entered against both 828 Pty Limited and Mr Jorgensen in June 2015. 828 Pty Limited was ordered to pay a pecuniary penalty of $55,000 and to comply with the compliance notices. Mr Jorgensen was ordered to pay a pecuniary penalty of $12,000. 4 That was by no means the end of the matter. On 24 July 2015, the Ombudsman sought and obtained ex parte freezing orders in the Circuit Court which had the effect of restraining 828 Pty Limited from disposing of or dealing with any of its assets other than in certain specified circumstances. The freezing orders were extended on 30 July 2015. The purpose of the freezing orders was no doubt to prevent 828 Pty Limited from frustrating the enforcement of the judgment that had been obtained against it. The assets of 828 Pty Limited were defined in the orders as including "where applicable" money held in certain specified bank accounts. The specified circumstances in which 828 Pty Limited was permitted to deal with or dispose of its assets included, relevantly, where the dealing or disposal was "in the ordinary and proper course of [its] business". The orders, including a penal notice which warned of the repercussions of any disobedience of the orders, were served on Mr Jorgensen in his capacity as the "proper officer" of 828 Pty Limited. 5 In October 2017, the Ombudsman commenced proceedings against Mr Jorgensen in the Circuit Court alleging that he was in contempt of court. The Ombudsman alleged that Mr Jorgensen caused 828 Pty Limited to breach the freezing orders in early to mid-August 2017 by causing funds to be transferred on nine occasions from two bank accounts which were referred to in the freezing orders. It would also appear that at the hearing of the contempt charges the Ombudsman contended that, in causing Trek North Tours to make the transfers which were said to breach the freezing orders, Mr Jorgensen knowingly impeded the administration of justice. 6 After a four day hearing in late April and early May 2018, the primary judge in the Circuit Court convicted Mr Jorgensen of nine counts of contempt of court. On 10 May 2018, the primary judge sentenced Mr Jorgensen to imprisonment for 12 months, but ordered that he be released on 20 May 2018 if he paid a sum of money to the Ombudsman which represented the amount that 828 Pty Limited had initially been ordered to pay the Ombudsman in the underlying proceeding. His Honour declined to make any costs order. 7 Mr Jorgensen appealed both his conviction and the sentence imposed on him by the primary judge. The Ombudsman cross-appealed the primary judge's refusal to make a costs order. 8 Mr Jorgensen's conviction appeal raises three issues. The first is whether Mr Jorgensen was denied procedural fairness during his trial in the Circuit Court by reason of the primary judge's excessive and inappropriate interventions during the course of his evidence. The second is whether the primary judge misdirected himself in relation to the proper interpretation of the "ordinary and proper course of business" exception in the freezing orders and the relevant mental element of the contempt charges which had been brought against Mr Jorgensen. The third issue concerns the primary judge's use of a particular documentary exhibit in making what, at least on his Honour's view of the contempt charges, was an important finding against Mr Jorgensen.

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Relevant principles - contempt arising from breach of court orders 9 The Full Court in Kazal v Thunder Studios Inc (California) [2017] FCAFC 111; 256 FCR 90 at [26] cited with approval the following passage from Metcash Trading Ltd v Bunn (No 5) [2009] FCA 16 at [9], in which Finn J summarised the principles which apply where the alleged contempt concerns the breach of a court order and the alleged contemnor is a party bound by the relevant order: … First, the order alleged to be breached must be clear and unambiguous: see Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 at 515-516; and be capable of being complied with: see Australian Prudential Regulation Authority v Siminton (No 7) [2007] FCA 1609 at [40]. Secondly, the proper construction of an order is not a matter of fact but a question of law: Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110 at [19]. Thirdly, it is not necessary for an applicant to prove that an alleged contemnor intended to disobey the order: ibid, at [17]; nor is it necessary to prove that the alleged contemnor understood the true meaning of the terms of an order or that he or she was aware that his or her conduct constituted a breach of the order: Microsoft Corporation v Marks (No 1) (1996) 69 FCR 117 at 143. Nonetheless it may be highly relevant to the question of penalty that the alleged contemnor disobeyed an order because he or she placed a construction on it that was not its true construction: Universal Music Australia Pty Ltd at [38]. Fourthly, deliberate conduct which is in breach of a court order will constitute wilful disobedience of the order, and therefore a civil contempt, unless the conduct be casual, accidental or unintentional: Louis Vuitton Malletier SA v Design Elegance Pty Ltd (2006) 149 FCR 494 at [6]. Fifthly, the facts in issue in a contempt charge must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525 at 534. (Emphasis in original). 10 Thus, where the alleged contemnor is a party specifically bound by the order, it is not necessary to prove that they intended to disobey the order. Rather, deliberate conduct in breach of the order will be taken to constitute "wilful disobedience" of the order unless the conduct is "casual, accidental or unintentional". 11 The position is, however, different where the alleged contemnor is not a party bound by the court order. That will include the situation where the party bound by the order is a company and the alleged contemnor is a director of the company. In such a case, the alleged contemnor is only liable for contempt if it is proved, beyond reasonable doubt, that they knowingly aided, abetted, counselled or procured the breach of the order: Seaward v Paterson [1897] 1 Ch 545 at 555; ICI Australia Operations Pty Ltd v Trade Practices Commission (1992) 38 FCR 248 at 255, 266; Australian Competition and Consumer Commission v World Netsafe Pty Limited (No 3) [2003] FCA 159; 127 FCR 542 at [86]; Cardile v LED Builders Pty Ltd [1999] HCA 18; 198 CLR 380 at [30]. In such circumstances, the alleged contemnor is not liable as an accessory, but rather is directly liable for an independent contempt committed by themselves in obstructing the course of justice: Zhu v Treasurer of the State of New South Wales [2004] HCA 56; 218 CLR 530 at [121]. 12 A third party not bound by the court order will only be liable for contempt if they not only know of the order, but also engage in conduct which is intended to frustrate, thwart or subvert the purpose of the order. In CCOM Pty Ltd v Jiejing Pty Limited [1992] FCA 325; 36 FCR 524 at 530-531, Drummond J referred to the liability of a party not bound by the order in the following terms: Mr McCullagh however is not a party to the action and is not bound by the undertaking. Such a person is not subject to the strict liability in contempt which rests upon a person bound by an undertaking that is breached. However a person who is not in terms bound by an undertaking but who knows of it and who then does something which disrupts the situation created by the undertaking may, but not necessarily must, be guilty of contempt of court. Such a person will be guilty of contempt where his conduct, coupled with his knowledge of the undertaking, shows that he is flouting the authority of the court by doing something which he knows will prevent the undertaking given to the court achieving its intended object. Such a person will be in contempt, because he has "knowingly impeded or interfered with the administration of justice by the court in the action between A and B": see Attorney-General v Times Newspapers Ltd (supra) (at 1003; 405), per Lord Brandon. See also Seaward v Paterson [1897] 1 Ch 545 at 555 and Z Ltd v A-Z and AA-LL [1982] QB 558 at 578. In Attorney-General v Times Newspapers Ltd, Lord Oliver (at 1018-1019; 419), speaking of the circumstances in which a determination could be made that a stranger to a court order which had been breached was guilty of contempt, said: "… a more dependable guide is to be found in the way in which the gravamen of the offence is expressed in the respondent's case and which, I think, must be based upon the speeches in this House in Attorney-General v Leveller Magazine Ltd [1979] AC 440: 'The publication … frustrates, thwarts, or subverts the purpose [and I interpolate that Lord Oliver emphasised that phrase] of the court's order and thereby interferes with the due administration of justice in the particular action.' 'Purpose', in this context, refers, of course, not to the litigant's purpose in obtaining the order or in fighting the action but to the purpose which, in seeking to administer justice between the parties in the particular litigation of which it had become seized, the court was intending to fulfil." I think the statement by Lord Oliver most clearly identifies the features that must be present in the conduct of a stranger to an order of the court or an undertaking given to the court before he can be found guilty of contempt where the order or undertaking is breached. 13 Drummond J also held that a party not bound by the order will not be liable if they had an honest but mistaken belief as to the meaning or operation of the order which, if correct, would mean that their conduct could not amount to an interference with the operation of the order. His Honour said, in that regard (at 532): And if a stranger, in fact, interferes with the operation of an undertaking given in an action between A and B, but does so in the honest but mistaken belief that the undertaking has a particular meaning which, if correct, would mean that his conduct could not be an interference with this operation, then there is equally a lack of the mens rea necessary to put him in contempt. This is so, in my view, no matter how unreasonable the stranger's mistaken belief is, so long as it is a belief that is honestly held. 14 Those passages from the judgment of Drummond J in CCOM were referred to with approval in Sigalla v TZ Limited [2011] NSWCA 334 at [14]-[16], [28] (Macfarlan JA, Young JA and Handley AJA agreeing); see also Admark Property Group Pty Ltd (in liq) v GJ Building and Contracting Pty Ltd [2016] NSWSC 1309 at [23]-[27]. 15 The critical point for the purposes of the present appeal is that, because Mr Jorgensen was not a party to or directly bound by the freezing order, the Ombudsman was required to prove that when Mr Jorgensen caused funds to be transferred from the frozen bank accounts, he knew that the transfers breached the freezing order. As will be seen, that in turn required the Ombudsman to prove, beyond reasonable doubt, not only that the transfers did not fall within the "ordinary and proper course of business" exception, but also that Mr Jorgensen knew that to be the case and did not honestly, but mistakenly, believe that the transfers fell within the exception. 16 Before addressing the grounds and contentions advanced by the parties in support of the conviction appeal, it is necessary to consider in more detail the terms of the freezing order, the terms of the contempt charge, the evidence which was before the primary judge and the primary judge's reasons for finding that Mr Jorgensen was guilty of contempt.

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The freezing order 17 It is important to emphasise that the freezing order made on 24 July 2015 (and extended on 30 July 2015) (the freezing order) was directed to or against 828 Pty Limited, not Mr Jorgensen. The freezing order did not directly restrain Mr Jorgensen from doing anything, though subpara 5(b) of the freezing order provided that "[i]f you are ordered not to do something, you must not do it yourself or through directors, officers, partners, employees, agents or others acting on your behalf or on your instructions or with your encouragement or in any other way". Mr Jorgensen was the sole director of 828 Pty Limited. 18 The central operative subparagraph of the freezing order was subpara 6(a) which provided as follows: You must not remove from Australia or in any way dispose of, deal with or diminish the value of any of your assets in Australia ('Australian assets') up to the unencumbered value of AUD $84,956.75 ('the Relevant Amount'). 19 Subparagraph 7(1) of the freezing order defined what Trek North Tour's assets were for the purposes of the freezing order. It was in the following terms: (1) your assets include: (a) all your assets, whether or not they are in your name and whether they are solely or co-owned; (b) any asset which you have the power, directly or indirectly, to dispose of or deal with as if it were your own (you are to be regarded as having such power if a third party holds or controls the asset in accordance with your direct or indirect instructions); and (c) the following assets in particular: (i) the assets of your business A.C.N 156 455 828 PTY LTD TRADING AS TREK NORTH TOURS carried on from: i. Unit 3, 87 Lake Street, Cairns, ii. 43 The Esplanade, Cairns, iii. 53-57 The Esplanade, Cairns, and iv. Shop 10, 93 The Esplanade, Cairns. or, if any or all of the assets have been sold, the net proceeds of the sale; and (ii) any money in any bank accounts held by A.C.N 156 455 828 PTY LTD TRADING AS TREK NORTH TOURS, including, where applicable, the following accounts: a. Account Number 451643835 held with either Suncorp Bank, Commonwealth Bank or any other banking institution, b. Account Number 452798506 held with either Suncorp Bank, Commonwealth Bank or any other banking institution, and c. Account Number 452058391 held with either Suncorp Bank, Commonwealth Bank or any other banking institution. 20 The terms of subpara 7(1)(c)(ii) of the freezing order are somewhat curious. That is because, while the chapeau refers to money held in any bank accounts held by 828 Pty Limited, the three accounts then specified do not appear to have been accounts held in the name of 828 Pty Limited. 21 The first account, account number 451643835, was an account held at Suncorp Bank in the name of Yubnub Pty Ltd. This account will be referred to in these reasons as the Yubnub account. Mr Jorgensen was a director of Yubnub and a signatory for the Yubnub account. 22 The proceedings in the court below appeared to have been conducted on the basis that 828 Pty Limited was at all relevant times beneficially entitled to all of the funds in the Yubnub account and able to deal with them on that basis. It is not entirely clear why that was so. The evidence did suggest that that at least some of the income derived from the business of Trek North Tours was deposited into the Yubnub account, even though strictly speaking 828 Pty Limited, not Yubnub, owned or conducted the business. The evidence did not, however, appear to go so far as to suggest that all of the funds in the Yubnub account were at all times assets of 828 Pty Limited. Mr Jorgensen operated a number of different bank accounts in different names and appeared to deal with the funds in those accounts without any particular regard to which entity or business was entitled to them. The precise provenance of the funds in the Yubnub account at any given time was not the subject of any evidence or close analysis at the hearing of the contempt charges. 23 The second account, account number 452798506, was an account held at the Suncorp Bank in the name "Mr L A Jorgensen t/a Trek North Tours". This account will be referred to in these reasons as the Jorgensen TNT account. It again appeared to be common ground that some of the revenue derived from the Trek North Tours business was deposited into this account. It was nevertheless an account held in Mr Jorgensen's name, not in the name of 828 Pty Limited. Not surprisingly, Mr Jorgensen was a signatory for this account. 24 The third account, account number 452058391, was not the subject of any evidence or consideration at the hearing of the contempt charges. It was not an account from which any funds were relevantly transferred. 25 The other curiosity about subpara 7(1)(c)(ii) of the freezing order is that it includes the words "where applicable". It is not entirely clear what those words mean in the context in which they are used in the freezing order. In its submissions on this appeal, the Ombudsman asserted that the words "where applicable" were superfluous. If that is the case, it is unclear why they were included in the freezing order. The better view would appear to be that the words "where applicable" were intended to operate so as to ensure that the funds in the three specified accounts were only considered to be an asset of 828 Pty Limited for the purposes of the freezing order if the funds were beneficially owned by 828 Pty Limited, or if 828 Pty Limited had the power to dispose of the funds as if they were its own. Ultimately, however, nothing of significance turned or turns on this issue. As already noted, the proceeding below appeared to be conducted on the basis that 828 Pty Limited had the power to dispose of the funds in the relevant accounts as if they were its own. Mr Jorgensen did not contend that the freezing order were in any respect unclear, ambiguous or incapable of compliance. 26 The other critical paragraph to consider is para 10, which specified certain exceptions to the operation of the freezing order. It was in the following terms: This order does not prohibit you from: (a) Paying the remuneration and employee entitlements of the First Respondent's employees as required by law; (b) Paying $15,000 for legal expenses; (c) dealing with or disposing of any of your assets in the ordinary and proper course of your business, including paying business expenses bona fide and properly incurred; and (d) in relation to matters not falling within (a), (b) or (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. (Emphasis added.) 27 The terms of subpara 10(c) of the freezing order are particularly critical having regard to the issues that arose both before the primary judge and on appeal. The important point to note about that subparagraph is that the operative words are "in the ordinary and proper course of your business". The dealing or disposition of assets in the "ordinary and proper course" of the business is said to include "paying business expenses bona fide and properly incurred", but that is only one example of such a dealing or disposition. The exception is not limited to paying business expenses.

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The contempt charge 28 Section 17 of the Federal Circuit Court of Australia Act 1999 (Cth) provides that the Circuit Court has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court. Rule 19.02(1) of the Federal Circuit Court Rules 2001 (Cth) provides that if it is alleged that a person has committed a contempt of Court (other than contempt in the face or hearing of the Court), an application may be made for the person to be dealt with for the contempt. Rule 19.02(2) provides, amongst other things, that an application must "state the contempt alleged". 29 The application filed by the Ombudsman in the Circuit Court in relation to the alleged contempt by Mr Jorgensen was in some respects fairly unclear or uninformative in terms of stating the "contempt alleged". The application sought the following declaration: 1. A declaration that the Respondent is in contempt of the Court; (a) in that: (i) on or about 4 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $2,330.00 from Suncorp Bank Business Everyday Account (BSB 484-799 Number 451643835) in the name of Yubnub Pty Ltd (Yubnub Account), being an account and moneys in respect of which ACN 156 455 828 Pty Ltd trading as Trek North Tours (Trek North Tours) had a beneficial interest, into the Suncorp Bank Access Equity Account (BSB 484-799 Number 503197972) held in the name of Leigh Alan Jorgensen/Leigh Jorgensen Family Trust (Family Trust Account); (ii) on or about 6 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $8,001.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; (iii) on or about 9 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $9,996.95 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; (iv) on or about 9 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $4,558.00 from the Suncorp Bank Business Everyday Account (BSB 484-799 Number 452798506) in the name of Leigh Alan Jorgensen T/A Trek North Tours (Trek North Tours Account), being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; (v) on or about 10 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $2,569.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; (vi) on or about 11 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $4,621.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; (vii) on or about 12 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $4,713.64 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; (viii) on or about 13 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $1,255.97 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account; and (ix) on or about 14 August 2015, the Respondent authorised and directed the electronic transfer of funds in the amount of $2,990.00 from the Yubnub Account, being an account and moneys in respect of which Trek North Tours had a beneficial interest, into the Family Trust Account, (b) in circumstances where: (i) on 24 July 2015, Judge Jarrett made orders addressed to the Proper Officer of Trek North Tours in Federal Circuit Court Proceeding No BRG 1009 of 2014 (Order); (ii) order 6 of the Order restrained Trek North Tours from removing from Australia or in any way disposing of, dealing with or diminishing the value of any assets which are in Australia up to an unencumbered value of AUD$84,956.75; (iii) the Respondent was informed of the terms of the Order by email at about 4.21 pm on 24 July 2015 and was aware of the terms of the Order on or before 30 July 2015; (iv) the Respondent appeared before Judge Jarrett upon the extension of the Order on 30 July 2015 (Extended Order); (v) order 2 of the Extended Order varied the Order so that it had effect until further order; (vi) the Respondent was informed of the terms of Extended Order during the hearing before Judge Jarrett on 30 July 2015 and the orders were subsequently emailed to him by Sarah Hedger on 27 August 2015; and (vii) the withdrawals do not fall within the exceptions listed at paragraph 10 of the Order. 30 The application also sought an order that Mr Jorgensen "be punished or otherwise dealt with for the contempt". 31 The grounds of the application were stated as being that Mr Jorgensen, "having knowledge of the Orders made by Judge Jarrett [the freezing orders], caused Trek North Tours [828 Pty Limited] to fail to comply with paragraph 6 of the Order". 32 Insofar as it could be said that the application filed by the Ombudsman contained a statement of the "contempt alleged", as required by r 19.02(2) of the Circuit Court Rules, the statement suggested that the alleged contempt was comprised of the following elements. 33 First, that the freezing order restrained 828 Pty Limited from dealing with or disposing of its assets. 34 Second, that Mr Jorgensen had knowledge of the freezing order. 35 Third, that 828 Pty Limited had a beneficial interest in the funds in the Yubnub and Jorgensen TNT accounts, or otherwise had the power to deal with or dispose of those funds as if they were its own. 36 Fourth, that Mr Jorgensen authorised and directed the electronic transfer of funds from the Yubnub and Jorgensen TNT accounts to an account held in the name of either Leigh Alan Jorgensen or Leigh Jorgensen Family Trust. 37 Fifth, that the "withdrawals" did not fall within the exceptions in paragraph 10 of the freezing order. 38 Sixth, that Mr Jorgensen thereby caused 828 Pty Limited to fail to comply with paragraph 6 of the freezing order. 39 The important point to emphasise at this juncture is that, while the Ombudsman alleged that Mr Jorgensen knew about the freezing order, it was not specifically alleged that Mr Jorgensen knew that the funds transfers that he authorised and directed breached the freezing order. Similarly, while the Ombudsman alleged that the transfers or withdrawals did not fall within the exception in paragraph 10(c) of the freezing order, it was not alleged that Mr Jorgensen knew that the transfers did not fall within that exception. Nor did the Ombudsman allege, in the application at least, that Mr Jorgensen knowingly impeded the administration of justice or knowingly aided and abetted 828 Pty Limited's failure to comply with the freezing order.

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The Ombudsman's evidence and submissions in the Circuit Court 40 Rule 19.02(2)(c) of the Circuit Court Rules provides that an application which alleges that a person has committed a contempt must be "supported by an affidavit setting out the facts relied on". The Ombudsman's application was supported by an affidavit sworn by a lawyer employed in the Ombudsman's office, Mr Samuel Prain. The Ombudsman subsequently filed and relied on another affidavit sworn by Mr Prain. 41 The first affidavit sworn by Mr Prain on 11 October 2017 was a lengthy affidavit which annexed a very large number of documents. Neither of the parties to this appeal took the Court to this affidavit or referred to any part of it in their submissions. That may perhaps have been because, as will be seen, the primary judge also did not expressly or directly refer to any part of this affidavit. The parties also did not include all of the annexures to Mr Prain's first affidavit in the Appeal Book. In those circumstances, it is unnecessary to refer at length to the contents of Mr Prain's affidavit or the annexures thereto. It suffices to make the following brief points. 42 First, Mr Prain's first affidavit contained a detailed chronological account of the underlying proceeding commenced by the Ombudsman in relation to the alleged contraventions of the Fair Work Act by 828 Pty Limited and the making and service of the freezing order against that company. That chronological account was not contentious. There was no dispute that Mr Jorgensen was aware of the freezing order at the time he caused or directed the relevant funds transfers. 43 Second, Mr Prain's first affidavit annexed a large bundle of bank statements which had been produced on subpoena by Suncorp Bank. The bundle included statements for a number of different bank accounts, including the Yubnub account, the Jorgensen TNT account and the account held in the name Leigh Alan Jorgensen or Leigh Jorgensen Family Trust. The latter account will be referred to in these reasons as the Family Trust account. As was noted earlier, the Ombudsman's case was that the nine breaches of the freezing order all involved transfers of funds into the Family Trust account. There was no dispute that those funds transfers occurred or that Mr Jorgensen caused them to be made. 44 Third, Mr Prain referred in his first affidavit to an "enforcement hearing" in the Circuit Court. That hearing took place on 24 March 2016 and was said to be a hearing in accordance with r 29.11 of the Circuit Court Rules. That rule provides that a party may apply to the Circuit Court "to issue a writ, order or any other means of enforcement of a judgment or order". Unfortunately, the enforcement summons was not included in the Appeal Book and there is no indication of exactly what orders had been applied for or were made pursuant to r 29.11. As a result, it is not known exactly what "writ, order or any other means of enforcement" the Ombudsman had applied for. It is also not entirely clear what the so-called enforcement hearing specifically involved, though it appears from the transcript of the enforcement hearing that Mr Jorgensen had been required to attend court for examination about the financial affairs of 828 Pty Limited. Nor, indeed, is it entirely clear exactly what judgment or order the Ombudsman was seeking to enforce, though it may fairly be assumed that it was the judgment which ordered 828 Pty Limited to pay the amounts which were the subject of the compliance notices. 45 In any event, it would appear that Mr Jorgensen was examined by the Ombudsman's counsel at the enforcement hearing. Mr Prain's first affidavit annexed a transcript of the enforcement hearing held on 24 March 2016, including Mr Jorgensen's evidence. It would also appear that Mr Jorgensen produced a number of documents to the Circuit Court during the enforcement hearing. Mr Prain's first affidavit annexed some, but apparently not all, of those documents, or at least some of them. 46 Fourth, Mr Prain's first affidavit contained what appeared to be a relatively uncontroversial narrative of the relevant entries in the bank statements which evidenced the relevant funds transfers. 47 Mr Prain's second affidavit was sworn on 7 February 2018. It simply annexed various subpoenas and notices to produce which had been issued to the Commonwealth Bank of Australia, together with a very large number of bank statements which had been produced in answer to the subpoenas and notices. It also contained Mr Prain's analysis of the balances of various bank accounts at various times. The contents of Mr Prain's second affidavit was not referred to in the judgment of the primary judge. Nor was this Court taken to any part of it by either party in their submissions in relation to the appeal. The relevance of Mr Prain's analysis of the balances of some of the bank accounts is not immediately apparent. 48 The only other evidence apparently relied on by the Ombudsman before the primary judge was documentary evidence in the form of invoices issued to "Trek North Tours" by Queensland Rail Limited, a copy of the discretionary trust deed for the Leigh Jorgensen Family Trust dated 5 February 2014 and a letter from an accountant based in India which appeared to be dated 1 March 2016 (Exhibit 4). The latter document was produced by Mr Jorgensen during the enforcement hearing. He was asked some questions about it during that hearing. As will be seen, it was tendered by the Ombudsman in the proceeding before the primary judge so as to provide a "complete record" of the enforcement hearing. It also featured prominently in the primary judge's reasons. The primary judge's use or reliance on Exhibit 4 in making certain findings is the subject of one of Mr Jorgensen's appeal grounds. 49 The Ombudsman's case as articulated in its submissions in the Circuit Court was that Mr Jorgensen's conduct in authorising or directing the transfers from the Yubnub account to the Family Trust account constituted a criminal contempt. It was submitted that Mr Jorgensen was the "proper contemnor" even though 828 Pty Limited was the party bound by the freezing order because he had knowledge of the freezing order and assisted 828 Pty Limited to disobey them. The Ombudsman submitted that the elements of the contempt it was alleging against Mr Jorgensen were: first, the existence of the freezing order; second, the terms of the freezing order were clear, unambiguous and capable of compliance; third, knowledge of the freezing order; and fourth, the alleged contemnor, Mr Jorgensen, knowingly impeded the administration of justice. 50 It is unnecessary, for present purposes, to outline the Ombudsman's submissions in relation to the first three elements. It would appear that they were essentially not in issue in the Circuit Court and, even if they were, they were not the subject of any relevant issue in this appeal. As for the fourth element, the Ombudsman's submission was essentially that Mr Jorgensen knowingly impeded the administration of justice because he knew of the existence of the freezing order and yet authorised or directed the payments from two of the frozen bank accounts into the Family Trust account. 51 The Ombudsman's case was that the relevant transfers contravened the freezing order because they did not fall within any of the exceptions in the freezing order, including the "ordinary and proper course of business" exception in para 10(c) of the freezing order. It was submitted in that regard that Mr Jorgensen's evidence did not establish a reasonable possibility that the payments were made in the "ordinary and proper course" of 828 Pty Limited's business. The Ombudsman's primary submission in that respect was that the payments into the Family Trust account did not constitute the payment of 828 Pty Limited's business expenses. 52 In the Ombudsman's submission, Mr Jorgensen's evidence rose no higher than an assertion that the payments related to "generic business expenses" which he was not able to particularise. It was also submitted that, as at 30 July 2015, when the freezing order was extended, the Family Trust account was "in the black" and therefore 828 Pty Limited could not have owed anything to Mr Jorgensen in respect of the payment of past business expenses. The Ombudsman pointed out that each of the payments to the Family Trust account had the effect of "clearing out" the Yubnub account and submitted that the apparent intention of the payments was simply to reduce the amount of interest payable in respect of any debit balance in the Family Trust account. The Ombudsman submitted that, even if the payments had something to do with the payment of business expenses, they were not "proper" because there was no loan agreement between 828 Pty Limited and Mr Jorgensen and no proper records maintained by the business. 53 While the Ombudsman submitted that the payments did not fall within the exception in para 10(c) of the freezing order, it was not submitted, at least directly, that the evidence established that Mr Jorgensen knew that the payments did not fall within that exception. The Ombudsman did attack Mr Jorgensen's credibility as a witness and the reliability of his evidence. The submissions made in that regard, however, were directed to the question whether Mr Jorgensen had established a reasonable possibility that the exception in para 10(c) of the freezing order applied. They were not directed to Mr Jorgensen's evidence that he believed that the payments fell within that exception. At the very conclusion of the Ombudsman's oral submissions it was put to the primary judge that he "may think it was a wilful and deliberate attempt to disobey the orders", though the precise basis upon which it was submitted that the primary judge might arrive at that conclusion was not articulated at all. 54 It is also important to emphasise in this context that the Ombudsman expressly disavowed that its case against Mr Jorgensen was that he had intentionally cleared the Yubnub account so that the funds in that account were not available for payment of the judgment debt owing by 828 Pty Limited. The following exchange occurred in the course of the final submissions for Mr Jorgensen: MS GOVER [Counsel for Mr Jorgensen]: My learned friend - the applicant has submitted that he [Mr Jorgensen] has intentionally cleared funds specifically to avoid those funds being in the business account, so that they could be available for payment of the judgment debt or recovery of the judgment debt. I apologise if I've misstated that. HIS HONOUR: Yes. I don't know that --- MS WILSON [Counsel for the Ombudsman]: I never made that submission, your Honour. 55 Counsel for the Ombudsman went on to say that, insofar as Mr Jorgensen's intention was concerned, the Ombudsman's case was only that Mr Jorgensen's conduct in transferring the funds in question was intentional in the sense that "[i]t was an intentional act to take those funds away". The primary judge confirmed that his understanding of the Ombudsman's case concerning Mr Jorgensen's state of mind was that "these were intentional acts, in that it wasn't reckless, it wasn't an administrative oversight" and that it "was a conscious decision to take monies out of the frozen accounts for at the very least a purpose of reducing the interest that would have to be paid by the family trust".

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Mr Jorgensen's evidence and submissions in the Circuit Court 56 Before the primary judge, Mr Jorgensen relied on an affidavit sworn by him on 30 April 2018. That affidavit included Mr Jorgensen's general description of the business conducted by Trek North Tours and his account of the original proceedings commenced by the Ombudsman and the making and service of the freezing order. It is unnecessary to refer to those aspects of Mr Jorgensen's evidence. Suffice it to say that Mr Jorgensen said that his understanding was that the freezing order were subject to some exceptions, which included that he was "permitted to deal with or dispose of funds from the Frozen Accounts in the ordinary course of [his] business, including payment of business expenses". 57 Mr Jorgensen's affidavit dated 30 April 2018 included the following evidence (at [15]-[26]) concerning the funds transfers which were the subject of the contempt charges (referred to in the affidavit as the Withdrawals): 15. I confirm that I was the only person with access to and control of the Frozen Accounts at the time the Withdrawals were made. I cannot recollect making those particular transactions but accept that I did. 16. The Trek North Tours business had significant outgoings, including monthly rental payments for the retails outlets from which it operated and monthly invoices from Skyrail and Queensland Rail. 17. At the time the Withdrawals were made, it was my practice was [sic] to pay some business expenses from the Family Trust Account. I also paid business expenses with a Commonwealth Bank Mastercard in my own name (5523 5052 7025 0991) (the Mastercard). 18. I usually repaid the Mastercard from a Commonwealth Bank Complete Access Account (BSB 064-804, Account 000436254) in my own name (the CBA Account). I also transferred large lump sums from the Family Trust Account into the CBA Account. The CBA Account was closed by the Commonwealth Bank in around November 2017. They advised this was for "commercial reasons". I can no longer access those accounts and cannot access by [sic] old bank statements via internet banking. 19. Statements for the CBA Access Account and Mastercard are included at pages 15 to 104 of Annexure SP-27 of the affidavit of Samuel David Walter Prain dated 7 February 2018 (Mr Prain's Second Affidavit). 20. The repayment of business expenses paid from the Family Trust Account was done on an ad hoc basis and cashflow through the business was variable. Rather than repaying specific amounts for particular business expenses, I would transfer money into the Family Trust Account when funds were available in the Trek North Tours Account or Yubnub Account. This was to reduce the line of credit whenever I could and lower the interest. I would empty whatever funds were in those accounts to reduce the overall debt. 21. I would also transfer money from the Yubnub Account to the Trek North Tours Account to cover business expenses. 22. By the time it went into liquidation, Trek North Tours owed $177,652 to Yubnub for payment of business expenses. Annexed hereto and marked 'LAJ-1' is a copy of the financial statements for Yubnub for the year ending 30 June 2016, confirming a debt in that amount. 23. The Trek North Tours business expenses paid from the Family Trust Account included payments made to the following accounts: a. 084472 791708952 - This is the bank account of Skyrail, referred to in paragraph 5 above. Annexed hereto and marked 'LAJ-2' is a copy of an invoice from Skyrail dated 16 March 2018 which contains these bank account details. b. 014734 493250736 - This is the bank account of A & K Ankars Pty Ltd, the lessor of Shop 10, Calypso Plaza, Shields Street in Cairns. The lease was held by Yubnub and Trek North Tours operated out of a retail store out [sic] those premises until it went into liquidation. This store has now closed. The premises were leased through Cairns Commercial real estate agents. There was never any formal sublease agreement between Yubnub and Trek North Tours in respect of these premises. Annexed to this affidavit and marked 'LAJ-3' is a true copy of an invoice from A & K Ankars Pty Ltd dated 25 July 2016 which contains these bank account details. c. 064013 010030050 - This is a bank account operated by Queensland Rail. Annexed to this affidavit and marked 'LAJ-4' is a true copy of an invoice from Queensland Rail dated 28 August 2016 which contains these bank account details. In the past I have paid Queensland Rail using their bank details on some occasions, and on other occasions by using the BPAY reference provided on the invoice. 24. The Trek North Tours business expenses paid from the Mastercard included frequent payments made to the following payees: a. "Rainforestation Pty Kuranda AUS" - Rainforestation is a nature park in Kuranda, Queensland. As Kuranda is the destination of the Skyrail, Rainforestation was a component of Trek North Tours' daytrip packages; and b. "Queensland Rail Limi Brisbane AUS" - As to the relationship between Trek North Tours and Queensland Rail, see paragraph 4 above. 25. After the freezing orders were made, I continued to operate my business and pay outgoings as I usually would. However, I did not draw any personal income from the Frozen Accounts. The Withdrawals were made to repay the Family Trust Account for business outgoings previously paid on behalf of Trek North Tours, particularly the large, frequent payments to Skyrail and Queensland Rail. This was my usual practice at that time. The Withdrawals were not for personal use. 26. For the reasons above, at the time I made the Withdrawals I believed they fell within the exception to the Freezing Order. 58 It should be noted that the references to Trek North Tours in Mr Jorgensen's affidavit were references to 828 Pty Limited and that the references to the Trek North Tours account were references to the Jorgensen TNT account. 59 As can be seen, in short summary Mr Jorgensen's evidence was that it had for some time been his practice to pay business expenses payable by Trek North Tours out of the Family Trust account and to transfer funds from the Yubnub account to "cover" those business expenses. That practice continued after the freezing order were made. Critically, his evidence was that the relevant funds transfers were made to repay the Family Trust account for "business outgoings previously paid on behalf of Trek North Tours" and that he believed that they therefore fell within the "ordinary and proper course of your business" exception in subpara 10(c) of the freezing order. 60 Mr Jorgensen was cross-examined at considerable length by counsel for the Ombudsman. He was also questioned at length by the primary judge during the course of the cross-examination. The questioning of Mr Jorgensen by both counsel for the Ombudsman and the primary judge occurred over three days. 61 It is neither necessary nor desirable at this stage to discuss Mr Jorgensen's oral evidence at length. It suffices to say that, despite extensive questioning concerning the conduct of the business of Trek North Tours and the operation of the relevant bank accounts, Mr Jorgensen maintained that the funds transfers from the Yubnub and Jorgensen TNT accounts to the Family Trust account were all repayments of business expenses of the Trek North Tours business which had earlier been paid out of the Family Trust account. The business expenses were first paid from the Family Trust account because that was the only line of credit available to Mr Jorgensen. 62 Mr Jorgensen conceded that he was unable to say exactly what business expenses the impugned funds transfers specifically related to and agreed that the amounts did not correspond with any particular invoices. Rather, the transfers were made whenever business funds became available in, relevantly, the Yubnub account and generally had the effect of clearing the account until further funds were paid into it. This was done in part to ensure that the debit balance of the Family Trust account was reduced to minimise the amount of interest that was payable. He maintained that this was the way he had always conducted the Trek North Tours business and operated the relevant accounts and that he therefore believed that the funds transfers fell within the exception in subpara 10(c) of the freezing order. That was because he believed that the funds transfers were in the "ordinary and proper course" of the business of Trek North Tours and 828 Pty Limited. 63 In his submissions to the primary judge, Mr Jorgensen pointed to documentary evidence which supported or corroborated his case that the impugned transfers were simply a continuation of the practice that he had for some time adopted of first paying business expenses out of the Family Trust account and then reimbursing the Family Trust account from business funds when received in the Yubnub account. He submitted that an analysis of the Family Trust account statements showed that, for some considerable time prior to the making of the freezing order, business expenses of the Trek North Tours business were regularly paid out of the Family Trust account. Those payments included fairly regular payments to "Skyrail" and Queensland Rail. 64 In relation to the specific funds transfers, Mr Jorgensen pointed out that the Family Trust account statements showed that on 3 August 2015, the day before the first of the impugned transfers to the Family Trust account was made, two "Bpay" payments were made to Queensland Rail from the Family Trust account. Those payments, for $24,628.69 and $9,937.60 were referable to invoices issued by Queensland Rail to the Trek North Tours business in respect of the Kuranda Scenic Railway. Those invoices, which were in evidence, were dated 13 June and 30 June 2015 respectively. The bank statements also revealed that on 14 August 2015, an amount of $7,500 was transferred from the Family Trust account to the Jorgensen TNT account. Mr Jorgensen contended that the evidence therefore showed that in the period from 3 August 2015 (the day before the first of the impugned payments) to 14 August 2015 (the date of the last of the impugned payments), the Family Trust account was used to pay $42,066.29 towards the business expenses of the Trek North Tours business and $41,005.56 was transferred to the Family Trust account from the Yubnub and Jorgensen TNT accounts. 65 In Mr Jorgensen's submission, it did not matter that the amounts paid to reimburse the Family Trust account did not precisely coincide with the invoices paid from the Family Trust account. Nor did it matter that Mr Jorgensen's way of doing business was unsophisticated, if not haphazard. The impugned payments were in keeping with the way the business had always been operated by Mr Jorgensen and were therefore made in the ordinary and proper course of the business.

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Judgments of the primary judge 66 On 30 April 2018, the primary judge delivered an ex tempore judgment rejecting Mr Jorgensen's application that he had no case to answer. His Honour found that Mr Jorgensen had a case to answer based on the evidence adduced in the Ombudsman's case because there was scant evidence concerning the relevant transactions and the way the bank accounts were operated. The evidence at that point did not, of course, include the evidence in Mr Jorgensen's affidavit. 67 On 3 May 2018, the primary judge delivered an ex tempore judgment (the Judgment) in which he found that the Ombudsman had proved each of the nine charges of contempt beyond reasonable doubt and convicted Mr Jorgensen accordingly. 68 The primary judge accepted the Ombudsman's submission that the contempt charges against Mr Jorgensen required the Ombudsman to prove four elements: that there was a court order in existence; that the terms of the order were clear, unambiguous and capable of compliance; that Mr Jorgensen had knowledge of the order; and that Mr Jorgensen knowingly impeded the administration of justice: Judgment at [46]. His Honour found that the first three elements were "easily met" and that the fourth element was the focus of the trial: Judgment at [47]-[50]. His Honour accepted that it was for the Ombudsman to prove each of the elements beyond reasonable doubt: Judgment at [52]. 69 As for the "exception" in subpara 10(c) of the freezing order, the primary judge proceeded on the basis that it was for Mr Jorgensen to show that there was evidence upon which it could be found that the relevant payments fell within the exception and that once that was shown it was for the Ombudsman to negate the exception beyond reasonable doubt: Judgment at [52]-[53]. It should perhaps be noted, in this context, that the primary judge's findings in this regard are consistent with the decision of Zammit J in Fortune Holding Group Pty Ltd v Zhang (No 2) [2017] VSC 738 at [31]-[49]; compare Australian Securities and Investments Commission v Sigalla (No 3) [2010] NSWSC 1076 at [46]-[48]. 70 The primary judge then purported to address the question whether the relevant "disposition of assets" occurred in the "ordinary course of business and in the proper course of the business": Judgment at [54]. That was no doubt a reference to the question whether the relevant withdrawals or transfers fell within the exception in subpara 10(c) of the freezing order. His Honour considered that the answer to that question turned in part on whether the relevant withdrawals were "bona fide business expenses which were properly incurred": Judgment at [54]. While it is not entirely clear, it would appear that the primary judge accepted that Mr Jorgensen had met his evidentiary onus of adducing evidence that raised a reasonable possibility that the transfers fell within subpara 10(c) of the freezing order and that the question was whether the Ombudsman had discharged its legal burden of proving beyond reasonable doubt that they did not. 71 The primary judge found that the transfers were not the payment of "business expenses bona fide and properly incurred" (Judgment at [54]). His Honour's reasons for so finding are not, however, entirely clear or easy to understand. His Honour appears to have accepted, or at least proceeded on the basis that, when he made the transfers, Mr Jorgensen was essentially reimbursing or repaying the Family Trust account because funds in the Family Trust account had been used to pay expenses of the Trek North Tours business. His Honour in effect found, however, that any reimbursement or repayment obligations that 828 Pty Limited may have had to the Family Trust arising from the use of funds in the Family Trust account to pay business expenses of Trek North Tours were not business expenses. His Honour reasoned as follows (at [59]-[61]): I do not think that these payments can be categorised as business expenses. A business expense would occur if the Respondent (or the company) were paying a creditor but repaying a family trust who has paid a creditor, is not a business expense itself and certainly not in this case. If one goes through the history of how these payments had been made, it is obvious to me that it does not really matter to the Respondent as to which entity pays the bill as long as, whenever there is too much credit in either of the business accounts that do not have debit or overdraft facilities, there is the minimum amount of debt in any other account for which a debit facility is enabled. That does not mean that the transferring of money becomes the payment of a business expense. I accept the submission of the Applicant that, in such circumstances as obtained in this case, what was created was at the most, a financial obligation, maybe even a legal obligation, on behalf of the business to pay the family trust. Such obligations are not business expenses. 72 The primary judge also considered that it was important that the transfers or withdrawals did not correspond with the "actual" payments of the Trek North Tours expenses out of the Family Trust account and that the withdrawals, in that respect, were "sporadic": Judgment at [70]. His Honour also considered that it was significant that the withdrawals on each occasion "cleared the account", by which his Honour meant that the withdrawals reduced the balance of the Yubnub account to nil or almost nil, and that the transfers reduced the "interest rates" on the Family Trust account: Judgment at [71]. His Honour's reference to reducing the "interest rates" was presumably a reference to the fact that the transfers into the Family Trust account reduced the debit balance of that account and meant that less interest was payable. 73 The primary judge also held that the transfers or withdrawals were not, in any event, made in the "ordinary and proper course of [828 Pty Limited's] business": Judgment at [72]. His Honour appears to have accepted that Mr Jorgensen had, in the past, conducted the business of Trek North Tours by using the Family Trust account to pay business expenses and then reimbursing the Family Trust account by transferring funds from the Yubnub account. His Honour held, however, that it did not follow that the conduct of the business in that way was "ordinary and proper": Judgment at [72]. His Honour reasoned as follows (at [74]): The mixing of business funds with personal funds could never be seen as proper. The non-documenting of loans could never be seen as proper. The non-existence of any loan agreement could not be seen as proper. The complete lack of records could not be seen as proper and it could never have been seen as a proper conduct of business to periodically clear a business account solely to ensure that a family trust account incurred the least amount of interest payable. 74 The primary judge accordingly found that the transfers or withdrawals did not fall within the exception in subpara 10(c) of the freezing order. 75 The primary judge then addressed what he considered to be an "even more fundamental problem" with Mr Jorgensen's conduct which was relevant to whether he had "knowingly impeded the administration of justice": Judgment at [76]. That problem, according to the primary judge's findings, was that from 1 July 2015 the business of Trek North Tours had "effectively shut up shop" and was taken over by the business of Trek North Safaris: Judgment at [78]-[85]. That finding was primarily based on the primary judge's analysis of Exhibit 4, the 1 March 2016 letter from the Indian accountant, though his Honour also considered that the letter did "seem to correspond with what the objective evidence is": Judgment at [78]. 76 The significance of the primary judge's finding that on 1 July 2015 the business of Trek North Tours had effectively been taken over by the business of Trek North Safaris was twofold. 77 First, it provided the primary judge with another reason for finding that the transfers or withdrawals were not "bona fide business payments and in the ordinary course of running the business". That was because, according to the primary judge, it meant that "any payments made after 1 July 2015 for business expenses, were made on behalf of Trek North Safaris": Judgment at [82]. 78 Second, though it is not entirely clear, the primary judge appears to have found that the "deliberate decision" by Mr Jorgensen to "ensure that Trek North Tours was no longer a going concern from 1 July 2015" was conduct which defeated, or had the effect of defeating, the purpose of the freezing order: Judgment at [84]-[85]. His Honour appears, therefore, to have found that it was that conduct by Mr Jorgensen, rather than the impugned transfers or withdrawals which were the subject of the Ombudsman's pleaded case, which satisfied the element of knowingly impeding the administration of justice. 79 On 10 May 2018, the primary judge heard submissions in relation to sentencing Mr Jorgensen. His Honour handed down an ex tempore judgment (the Sentence Judgment) in which he imposed the following sentence: That the Respondent, LEIGH ALAN JORGENSEN be sentenced to a period of imprisonment in the Lotus Glen Correctional Centre for a period of twelve (12) months, to be served immediately and upon the balance of $84,956.75 being paid to the Fair Work Ombudsman, with such monies to then be remitted to the relevant employees with in a further 28 days from the date of these Orders, the Respondent be released from prison on 20 May 2018 with the balance of his sentence to be wholly suspended. 80 His Honour made no order as to costs. His Honour also dismissed applications by Mr Jorgensen for bail and a stay of the sentence. 81 It should, however, be noted that on 11 May 2018, Reeves J ordered that the orders made by the primary judge on 10 May 2018 be stayed pending the hearing and determination of this appeal and that Mr Jorgensen be released on conditional bail. 82 For reasons that will in due course become apparent, it is unnecessary to refer at length to the primary judge's reasons for imposing the sentence that he did. It suffices to make the following short points. 83 First, the primary judge reiterated his finding that the impugned transfers to the Family Trust account were not business expenses even though "there was an obligation on the business to repay the trust" which had arisen because the Family Trust account had been used to pay business expenses: Sentence Judgment at [28]. His Honour also explained that, even if that obligation was a business expense, the "method" by which Mr Jorgensen had come to make the transfers was "not a proper way in which to conduct business" because there were no loan agreements, no records kept of the expenses and the transfers had the effect of "clearing of the bank accounts": Sentence Judgment at [29]. 84 Second, the primary judge did not sentence Mr Jorgensen on the basis that he knew that the relevant transfers were either not the payment of business expenses or were not made in the ordinary and proper course of the business of 828 Pty Limited trading as Trek North Tours. Nor did his Honour suggest that Mr Jorgensen knew that the transfers did not fall within the exception in subpara 10(c) of the freezing order. Nor were such findings referred to in the Sentence Judgment. 85 Third, consistently with the primary judge's judgment in respect of liability, his Honour had regard to what he found to be a "more alarming aspect" to Mr Jorgensen's conduct: Sentence Judgment at [30]. The more alarming aspect was that, according to his Honour, the business expenses that were reimbursed by the relevant funds transfers were business expenses of Trek North Safaris, not Trek North Tours. That was because Trek North Tours had been "left to wither and die on the vine" and Trek North Safaris "took over" on 1 July 2015: Sentence Judgment at [31]-[33]. 86 Fourth, it appears that the primary judge sentenced Mr Jorgensen on the basis that his conduct which warranted the "sternest possible condemnation" was his conduct in "orchestrat[ing] and structur[ing] a series of companies and businesses so as to be able to ensure that the Fair Work Ombudsman was never going to be able to have the judgment" in its favour satisfied (Sentence Judgment at [37]). As will be seen, there are a number of difficulties with that finding, not the least of which is that the contempt charges brought by the Ombudsman related only to specific breaches of the freezing order, not some broader scheme to defeat the judgment which had been obtained against 828 Pty Limited.

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appeal grounds and submissions 87 Mr Jorgensen's amended notice of appeal raised four grounds of appeal against his convictions for contempt. It also included a ground of appeal against the sentence imposed by the primary judge. 88 The first ground of appeal was, in short terms, that the primary judge erred in finding that the relevant transfers did not fall within the exception in subpara 10(c) of the freezing order because his Honour misconstrued the expressions "business expenses" and "ordinary and proper course of your business". Mr Jorgensen contended, in essence, that the primary judge was distracted by the "messiness" of the manner in which the business of Trek North Tours was conducted and in particular by the fact that the conduct of the business generally included or involved the mixing of business and personal funds and the inadequate documentation of transactions. In Mr Jorgensen's submission, the fact that he conducted his business in that general manner did not mean that the relevant transfers were not made in the "ordinary and proper course" of the business. The relevant question was whether the specific transfers were in "ordinary and proper course" of the business of Trek North Tours, not whether the conduct of that business generally was "proper". Mr Jorgensen relied, in support of this ground, on the decision in Michael Wilson and Partners Limited v John Forster Emmott [2015] EWCA Civ 1028; [2015] All ER (D) 160 which, he contended, involved analogous facts and circumstances. 89 The second ground was that the primary judge "impermissibly" relied on Exhibit 4 and as a result erred in finding that the business of Trek North Tours was not a going concern from 1 July 2015 and that any payments for business expenses made after 1 July 2015 were made on behalf of Trek North Safaris. Mr Jorgensen contended that Exhibit 4, the 1 March 2016 letter from the Indian accountant, was only admitted on a limited hearsay basis and that he was not asked any questions about it at the hearing. He submitted that the document did not, in any event, support the relevant findings made by the primary judge. 90 The third ground of appeal was that the primary judge either failed to make an essential finding of fact, being that Mr Jorgensen knowingly impeded the administration of justice, or in the alternative erred in finding, beyond reasonable doubt, that he knowingly impeded the administration of justice. Mr Jorgensen contended that, while the primary judge identified that it was necessary for the Ombudsman to prove that he knowingly impeded the administration of justice, he made no express finding in that regard. Even if such a finding was somehow implicit in his Honour's reasons, in Mr Jorgensen's submission it was not a finding which was open on the evidence. 91 The fourth ground of appeal is that Mr Jorgensen was denied procedural fairness as a result of the primary judge's "interventions" during the hearing. 92 The fifth ground of appeal relates to the sentence imposed on Mr Jorgensen. Mr Jorgensen contended that the "head penalty" of imprisonment was manifestly excessive because it required a period of "actual custody" to be served.

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Ground four - Denial of procedural fairness by reason of excessive interventions 95 Mr Jorgensen contended that excessive intervention by the primary judge during the course of his evidence at the trial resulted in or amounted to a denial of procedural fairness. He contended that the primary judge's interventions undermined or disrupted the orderly elicitation of his evidence and represented such a fundamental departure from the role of a judge in an adversarial trial that it compromised the primary judge's ability to objectively evaluate the evidence. Mr Jorgensen did not contend that the extent and nature of the primary judge's interventions supported a finding of apprehended bias: that a fair minded lay observer might reasonably apprehend that the primary judge might not bring, or might not have brought, an impartial mind to the resolution of the question that the judge was required to decide. The issues or concepts of apprehended bias and procedural unfairness by excessive intervention may overlap, but are nonetheless distinct: RPS v The Queen [2000] HCA 3; 199 CLR 620 at [11]; Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [61]. 96 It appears that Mr Jorgensen did not pursue any claim of apprehended bias because counsel who represented him before the primary judge did not apply for the judge to recuse himself, or otherwise raise any complaint concerning the interventions. It is, however, questionable whether the failure to object in the particular circumstances of this case would have constituted a form of waiver: cf. Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 572. That is because the interventions occurred throughout the trial and it may in those circumstances have been difficult to identify a particular point in time when objection should have been taken: cf. Nguyen at [31]. The impact or risks associated with the interventions may also not have materialised until the ex tempore judgment was delivered by the primary judge: Nguyen at [32], [255].

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Relevant principles 97 In any event, Mr Jorgensen's ground of appeal relating to the primary judge's interventions falls to be determined by references to the principles applicable to the situation where excessive interventions by a trial judge are said to have given rise to a denial of procedural fairness. Those principles are fairly well settled. In Galea v Galea (1990) 19 NSWLR 263, Kirby A-CJ (with whom Meagher JA agreed) summarised the relevant principles or guidelines in the following terms (at 281-282): 1. The test to be applied is whether the excessive judicial questioning or perjorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 (NZCA). 2. A distinction is drawn between the limits of questioning or comments by a judge when sitting with a jury and when sitting alone in a civil trial. Although there is no relevant distinction, in principle, between the judicial obligation to ensure a fair trial whatever the constitution of the court, great latitude in questioning and comment will be accepted where a judge is sitting alone. This is because it is conventionally inferred that a trained judicial officer, who has to find the facts himself or herself, will be more readily able to correct and allow for preliminary opinions formed before the final decision is reached: see R v Matthews (1983) 78 Cr App R 23; E H Cochrane Ltd v Ministry of Transport. 3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and "into the perils of self-persuasion": see Sir Robert Megarry, "Temptations of the Bench" (1978) 16 Alta L Rev 406 at 409; see also U Gautier, "Judicial Discretion to Intervene in the Course of the Trial" (1980) 23 Crim LQ 88 at 95-96 and cases there cited. 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654. 5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117). 6. The general rules for conduct of a trial and the general expression of the respective functions of judge and advocate do not change. But there is no unchanging formulation of them. Thus, even since Jones and Tousek, at least in Australia, in this jurisdiction and in civil trials, it has become more common for judges to take an active part in the conduct of cases than was hitherto conventional. In part, this change is a response to the growth of litigation and the greater pressure of court lists. In part, it reflects an increase in specialisation of the judiciary and in the legal profession. In part, it arises from a growing appreciation that a silent judge may sometimes occasion an injustice by failing to reveal opinions which the party affected then has no opportunity to correct or modify. In part, it is simply a reflection of the heightened willingness of judges to take greater control of proceedings for the avoidance of the injustices that can sometimes occur from undue delay or unnecessary prolongation of trials deriving in part from new and different arrangements for legal aid. The conduct of criminal trials, particularly with a jury, remains subject to different and more stringent requirements: see Whitehorn v R (1983) 152 CLR 657 discussed in R v R (1989) 18 NSWLR 74 at 84F per Gleeson CJ. 98 In R v T, WA [2014] SASCFC 3; 118 SASR 382, Kourakis CJ identified three basic grounds on which excessive judicial intervention might give rise to a denial of procedural fairness or miscarriage of justice. 99 The first ground, which Kourakis CJ referred to as the "disruption ground" is made out where the interventions unfairly undermine the proper presentation of a party's case: see also Ellis v R [2015] NSWCCA 262 at [65]. In Michel v R [2009] UKPC 41; [2010] 1 WLR 879, Lord Brown described this ground as involving interventions that prevent a party from doing himself or herself justice in the giving of his or her evidence. It may, however, also apply to interventions which occur in the course of submissions: see Jones v National Coal Board [1957] 2 QB 55 at 63-64. 100 The second ground is where the questioning or interruptions give an appearance of bias. As noted earlier, however, Mr Jorgensen did not pursue any claim of apprehended bias. 101 The third ground, which Kourakis CJ referred to as the "dust of conflict" ground (an expression coined by Lord Greene MR in Yuill v Yuill [1945] 1 All ER 183 at 189), is made out where the questioning or intervention is "such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance": R v T at [38]. Kourakis CJ further explained this ground as follows (at [39]): I prefer to state the dust of conflict ground in terms of compromising the capacity of the judge to adjudicate because an appeal court can never do anything more than speculate as to whether the judicial officer's vision was in fact "clouded by the dust of conflict". If the appeal court, on an appeal by way of rehearing, concludes that a judge's findings were wrong in fact on the evidence, it may correct them without relying on the judge's excessive judicial intervention. However, in those cases in which the facts, as found, were open to the trial judge, particularly given the judge's advantage in assessing the credibility of the witnesses, it is impossible for an appeal court to say whether or not the judge's finding in fact proceeded from a clouded, or clear headed, evaluation of the evidence. Moreover, because this ground, in effect, alleges an error of law which will generally result in a retrial irrespective of the appeal court's view of the weight of the evidence, it is better based on an objective standard measured by an assessment of the degree to which the departure from a judge's traditional role compromises the judicial capacity to objectively evaluate the evidence. 102 Needless to say, there are some entirely proper reasons why a trial judge might intervene and ask questions of a witness or test counsel's submissions. Judges are no longer expected to remain "as inscrutable as the Sphinx" throughout the course of a trial: Johnson v Johnson [2000] HCA 48; 201 CLR 488 at 493; see also Huda & Huda & Latham [2018] FamCAFC 85 at [1]. In Michel, Lord Brown gave the following summary of the sorts of interventions that are proper and permissible and those that are not (at [34]): Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced. 103 This passage was cited with approval in Nguyen at [17] (Basten JA) and [172] (Ward JA); see also Toth at [67]. 104 Appellate challenges based on excessive intervention by the trial judge are rarely easy to evaluate: Nguyen at [14]; Huda at [61]. It is generally necessary to consider the interventions complained of in the context of the trial as a whole and the findings of the trial judge in relation to the key issues, including, where applicable, findings as to credit.

[19]

Analysis of the trial transcript 105 A detailed review and analysis of the trial transcript in this matter clearly supports a finding that the trial judge's interventions were such that both the disruption ground and the dust of conflict ground are made out. The primary judge's interventions both undermined the proper presentation of Mr Jorgensen's case and represented such an egregious departure from the role of judge presiding over an adversarial trial that it unduly compromised his Honour's capacity to objectively evaluate the evidence. 106 Before addressing the specific features of the primary judge's interventions which support that conclusion, it should in fairness be emphasised that it is not hard to see why the primary judge considered it necessary at times to intervene during Mr Jorgensen's evidence. Mr Jorgensen was, for the most part, not an impressive witness. At certain times he appeared evasive and unable or unwilling to give direct answers to questions in clear or comprehensible terms. Some degree of intervention was no doubt warranted or required at times to ensure that Mr Jorgensen's answers were responsive. Mr Jorgensen's evidence also appeared at times to be unclear or confused. It was no doubt legitimate for the primary judge to intervene at times for the purpose of seeking clarification to aspects of Mr Jorgensen's evidence. 107 The problem, however, is that on just about any view, the extent and nature of the primary judge's interventions went well beyond those legitimate ends. 108 A review of the transcript of the hearing reveals the following twelve features of the primary judge's interventions during the course of the hearing. 109 First, the primary judge's interventions during the cross-examination of Mr Jorgensen began at a very early stage. 110 The cross-examination of Mr Jorgensen commenced with some questions about relatively uncontroversial issues. Counsel for the Ombudsman then took Mr Jorgensen to the transcript of his evidence at the enforcement hearing. Mr Jorgensen was questioned about evidence that he had given during the enforcement hearing which was to the effect that he was not personally liable to pay the penalties that were imposed on 828 Pty Limited and that he had chosen not to pay those penalties from his personal finances. Mr Jorgensen's evidence in that regard included that the "company doesn't have access to my personal funds". 111 While it seems tolerably clear that Mr Jorgensen was saying no more than that he was not personally liable to pay the debts of 828 Pty Limited, the primary judge appears to have taken exception to that evidence. At that point, his Honour essentially took over the questioning of Mr Jorgensen about the evidence he had given at the enforcement hearing on that topic. After a lengthy series of fairly confusing questions asked by the primary judge, Mr Jorgensen eventually agreed that he gave that evidence at the enforcement hearing. That prompted the following question or statement from the primary judge (T50 lines 1-7): You've said it. Okay. I don't know - you're the one that has - that has come out of your mouth. You're the one controlling all these entities, the Yubnub Proprietary Limited, the Trek North Tours, the Trek North Safaris - I don't know how many other things that you've got. You're the one that has control over that. You're the one who has control over your personal funds and your family trust and all of those things. Your words are "the company doesn't have access to my personal funds"?---That's my understanding, your Honour. 112 The precise relevance of the fact that Mr Jorgensen had not paid the pecuniary penalties that were imposed on the company from his own personal finances was never explained. Counsel for Mr Jorgensen in due course objected to further questioning on that topic by counsel for the Ombudsman, arguing that "the issue isn't whether my client is in contempt for not paying [the company's] judgment debt" but rather was "whether he's in contempt for the transactions particularised" (T53 lines 17-18). His Honour appears to have accepted the force of that argument, but held that questions directed at that topic were nevertheless relevant. 113 Second, the primary judge's interventions during the cross-examination of Mr Jorgensen were frequent and regular. From about eight pages into the transcript of the cross-examination, barely a page of the transcript goes by without his Honour intervening in some way in the cross-examination. Some of the interventions are relatively minor, though the vast majority are significant, substantial and lengthy. Well over half the pages of the transcript of the cross-examination include some significant intervention by the primary judge. In his submissions on appeal, Mr Jorgensen contended that the primary judge's questioning of Mr Jorgensen constituted about 40 per cent of the questioning during cross-examination. The Ombudsman did not dispute that calculation in his submissions. It appears to be a fairly accurate calculation. 114 Third, the questions that the primary judge asked Mr Jorgensen for the most part were not non-leading or open questions, but were closed questions or involved putting propositions to Mr Jorgensen, often in forceful terms, for his agreement or comment. The primary judge's questioning, for the most part, could fairly be characterised as constituting cross-examination. 115 There are numerous examples of this type of questioning. It suffices to give one example, which involved questioning directed to what was essentially one of the key factual issues in the proceeding; Mr Jorgensen's claim that the impugned transfers were made so as to reimburse the Family Trust account in respect of business expenses of Trek North Tours that had been paid out of that account. At one point of the cross-examination, as counsel for the Ombudsman was taking Mr Jorgensen through some of the entries in the relevant bank statements, the primary judge intervened as follows (T114 line 44 to T115 line 34): HIS HONOUR: Well, I mean - you know, it - it just - it really doesn't make sense, that if you've got business expenses and you've got a business account, and you know that you've got bills that are due from your business, that you just didn't pay them out of your business account, and instead put money from your account into your family trust, and asked the family trust to pay it. That doesn't - that doesn't make sense?---Can I comment, your Honour? Well, you can comment, but you see, this is - this is the point. When you have money in the account, which is your business account - - -?---Mmm. - - - which is your revenue from your business activities?---Mmm. To which you should be - have a, "Yes. This is my revenue, and these are my expenses". Instead, you get your revenue, you transfer it to another account, and then you say, "Right. Well, whilst I did have money to pay for these bills, I will just put that money into another account, and I will get that other account to pay the bills?---Okay. That doesn't make sense?---The other account would pay the bill, and my recollection is that the - this account would owe money for previous - ..... at call. Yes. But that's what you say, but I can't see any of that?---Your Honour? What bill was it that you paid - that you put $12,000 on 9 July? What bill was it that you put $3500 on 9 July? What bill was it when you cleared the account of 16,000?---Yes. If the credit line - - - None of them?---If the credit line owed - was in debt, that would - that was for the bills. Yes?---So it's - - - No, no, no. You see, this is - that's - that's the point is, you don't know whether the credit line is in debt because of the bills, or whether you took a holiday, or whether you bought a car, whether you bought groceries. It's just in debt?---Well, it was used for - for bills, your Honour. Well, that's what you say?---Okay. 116 Fourth, on many occasions the primary judge effectively took over the cross-examination of Mr Jorgensen on a particular topic, often when counsel for the Ombudsman had only just begun questioning Mr Jorgensen on that topic. After the primary judge's intervention, counsel for the Ombudsman would sometimes continue with the questioning on that topic, and sometimes would move onto a new topic as there was nothing further to ask on that topic. On other occasions, the primary judge would intervene and ask Mr Jorgensen about a different topic to that which was being addressed by counsel for the Ombudsman. After the primary judge asked some questions on that topic, counsel for the Ombudsman would pick up where his Honour had left off. In that way, the cross-examination often proceeded as if there was a form of "tag team" between the primary judge and counsel for the Ombudsman: cf. Nguyen at [209]. 117 One example of this occurred during the cross-examination of Mr Jorgensen about the trust deed of his family trust. That topic was introduced by counsel for the Ombudsman. Counsel for Mr Jorgensen objected to the questions about the trust deed on the basis of relevance, arguing that "whether or not Mr Jorgensen has complied with his obligations as trustee is… neither here nor there" (T73 lines 16-17). The primary judge overruled that objection on the basis that he thought that it was relevant, though it is unclear why. Counsel for the Ombudsman asked one more question on that topic, at which point the primary judge effectively took over the questioning (see from T73 line 31) as follows: HIS HONOUR: Yes. That's not answering the question. This was set up - - -?---So there's no - - - - - - in 2014?---There's no specific books, your Honour, for - not yet for the equity access. No. What did you do to establish and maintain proper books of account? That's what you were asked. What did you do?---Engaged a chartered accountant. And - and that will happen. And they've - they've actually been very busy with - - - What, four years busy? "I will get around to it; it has taken me four years to do this." Is that what you're saying?---Four years? Sorry. Well, this was set up in 2014?---Well, it hasn't ever had, until recently, equity accessible. Like, a credit - - - It has had a bank account. There's moneys going into this bank account. There are moneys going out of this bank account?---For - - - What is it that you've done under this deed to establish and maintain proper books of account?---Approached the chartered accountant, your Honour, and - and asked them to tidy all this up. And?---Well, if they've completed - - - In the end it's your responsibility. Where are the books? Where are the books for 2014 when you established this?---I'm sorry. I don't understand the question. Okay. Let's get down to basics. 2014 you set this up, right?---Yes. Okay. 2014 you knew - clause 55: The trustee must establish and maintain proper books of account. What did you do? You said, "I went to a chartered accountant." Fantastic. You've got an account where you've been using it for all sorts of things, that account. Where are the books for 2014?---Well, it has only been used the last year or two - maybe two years, your Honour. What do you mean it has been used - I've got all of these material that just shows that that account has been used certainly in 2015 because that's where these payments that the Fair Work Ombudsman says were in contempt have gone?---I believe it was 2015, the equity access. That was the statements. Mr Jorgensen, answer my question or there will be another proceeding for contempt. What have you done to establish and maintain the proper books of account?---Approached the chartered accountants to - - - And where are these proper books of account?---I don't have them here, your Honour. They haven't - they haven't - - - Do they exist?---No, not yet. No. Yes. (Emphasis added.) 118 Counsel for the Ombudsman then took up the questioning on this topic and moved onto the question of whether the trust produced proper financial statements. 119 Fifth, as also illustrated by the portion of the transcript just extracted, the primary judge sometimes made threatening or accusatory statements to Mr Jorgensen. The statement (emphasised in the extract) that Mr Jorgensen should answer the primary judge's question or there would be another proceeding for contempt is a particularly clear example of that type of questioning. 120 Sixth, the primary judge frequently interrupted Mr Jorgensen's answers to questions that were put to him, both by the primary judge himself and also by counsel for the Ombudsman. That is also apparent from the portion of the transcript that has just been extracted. It would appear that his Honour did not see any issue with him interrupting Mr Jorgensen as he gave his evidence. That is apparent from the following exchange, which occurred at one point where Mr Jorgensen had attempted to say something during an exchange between his counsel and the primary judge about an aspect of his evidence (T76 lines 39-46): HIS HONOUR: Do not talk when I'm talking. Do you understand just plain simple good manners? I'm the only one who can interrupt anyone in this court. Do you understand that?---I'm - I'm very sorry. And I will do it when I want?---I'm very sorry. You don't. Ms Wilson doesn't. Ms Gover doesn't. It's me and me only; understand?---Yes, your Honour. 121 Similarly, when Mr Jorgensen attempted to say something during an exchange between the primary judge and counsel for the Ombudsman, the following occurred (T113 lines 40-45): HIS HONOUR: Yes. Did I ask you a question?---No, your Honour. Well, what - did you just feel as though, "I think I'll just enlighten everyone with my knowledge"?---No, your Honour. I'm sorry. You talk when I ask you to talk?---Yes. 122 Seventh, some of the primary judge's questions were directed at issues that could fairly be characterised as collateral issues, or issues that could only have gone to Mr Jorgensen's credit. The questioning by the primary judge about whether the trust maintained proper books and records is one example of that type of questioning. At one point the primary judge also, somewhat unfairly, questioned Mr Jorgensen about whether the effect of his evidence was that 828 Pty Limited had engaged in insolvent trading (see T51 lines 1-23). At another point, his Honour questioned Mr Jorgensen about how his affidavit came to include the expression "ad hoc" when he did not understand what that expression meant. 123 Eighth, many of the questions put by the primary judge were in an unfair or inadmissible form and would have been objectionable if asked by counsel. For example, the primary judge frequently asked questions which included numerous statements or multiple questions. For instance, when asked about the existence of invoices for the business expenses that had, on Mr Jorgensen's evidence, been paid out of the Family Trust account, the primary judge asked the following question (T137 lines 7-16): HIS HONOUR: At any time?---Well, the - there are - obviously the account that has paid the invoices - those invoices exist. Do they?---Yes, your Honour. They haven't been brought here. I haven't seen them. I can't look at the account, your family trust account, and see any other invoices other than these two from Queensland Rail that you say have been paid in the ordinary accounts - the ordinary transactions of business. What other invoices are there? And if there are other invoices why aren't they here? 124 In fact, as counsel for Mr Jorgensen subsequently pointed out, there were some invoices annexed to Mr Jorgensen's affidavit. 125 Other examples of unfair or inadmissible questions asked by the primary judge appear in the portions of the transcript which have already been referred to, or are referred to in the extracts which follow. 126 Ninth, the primary judge was frequently critical, disparaging or sarcastic towards Mr Jorgensen and his evidence. For example, at one stage, his Honour said to Mr Jorgensen, "if you tell me the truth, that would be a good start" (T67 line 31) and, on another occasion, he said, "You've been as evasive as I've ever seen a witness" (T68 line 1). On another occasion, the primary judge interrupted or cut-off Mr Jorgensen's answer to a question and said (T138 lines 44-45): Now, you just keep trying to obfuscate. You keep trying to make sure that we don't get to the truth. You had better stop that because I'm getting very sick of it. 127 The primary judge also responded to one of Mr Jorgensen's answers by saying "[y]ou're kidding me" (T146 line 20). At one point, when Mr Jorgensen indicated that he did not understand a particular proposition that the primary judge was putting to him, his Honour said: "[w]hat, am I talking Swahili or something, am I" (T119 line 43). 128 Perhaps most significantly, the primary judge expressed disbelief and scepticism about Mr Jorgensen's evidence concerning what was one of the critical issues in the trial: his belief that the transfers were made in the ordinary and proper course of the business of Trek North Tours. When Mr Jorgensen was questioned about the relevant transfers from the frozen accounts to the Family Trust account, he maintained that the transfers were to reimburse the Family Trust account because that account had been used to pay Trek North Tours' business expenses. It was tolerably clear that as he gave evidence Mr Jorgensen was not able to marry up the transfers to any specific invoices that had been paid out of the Family Trust account. Perhaps understandably counsel for the Ombudsman nevertheless pressed Mr Jorgensen to specifically identify the "loans" that each of the transfers was said to be repaying. The following exchange occurred in that context (T129 line 9 to T131 line 21). [MS WILSON] And all of these times that I've taken you to, these ones just here, you can't tell me what that loan is for?---Have I not answered this? No, just you can't tell me - we're at the charges now. You can't tell me what that loan is for?---I can tell you it was a portion of whatever bills have been paid that was owing. But you can't give me any particulars of what bill you are paying with this amount, can you?---I can't marry - sometimes maybe. I mean, sometimes maybe, but - - - Well, I'm asking you about this time, on 9 August 2015, can you give me any particulars of what that "loan repay" is for?---I'm having trouble understanding what you're asking. I feel like I've answered the question, I'm sorry, your Honour. HIS HONOUR: No, but you haven't answered the question?---Well, it's - - - You may feel all sorts of things?---Right. But you've actually got to do things?---Okay. You may feel you've answered the question - - -?---Okay. - - - but you've actually got to answer the question. Now, the whole point is here is that you're trying to tell this court that those payments that you made after the freezing order were legitimate business expenses in that you were repaying the company - sorry, the family trust, because it had repaid bills?---Yes, your Honour. So you've had what Ms Wilson has gone through and said, right, you've actually cleared the account on 4 August; cleared the account on 6 August; cleared the account again on 9 August?---Yes, your Honour, when money - - - Now, on each of those times you've cleared the account, what bill is it that you are repaying?---The bills that would be presented in the debits from the line of credit, your Honour, and there was a substantial amount which I'm sure will - - - Well, we haven't seen any of it?---No. You understand?---I - yes, your Honour. I mean, is it - - -?---So my - - - - - - going to be the sort of "aha," the big reveal at the end. Are you going to sort of, you know, razzle dazzle us like Billy Flynn in Chicago and sort of have the big bamboozler right at the end? What is it that you are paying with these amounts?---Business expenses, your Honour, represented in the financial statements and the bank statements. Which just happen to be exactly the same as what amount of money you've got in the account which you're just clearing?---No, no, your Honour, no. Well, it's just - is that just coincidence, is it?---I'm sorry, I apologise, I feel I've explained that rather than have money sitting in an account doing nothing, it should be saving - - - I understand that, but you understand that you had a freezing order, you see? Now, freezing order - getting an account back to, or as little as possible, so that you don't incur bigger interest is not a business expense, and is not covered in any way, shape or form by the exceptions in the freezing order?---My understanding, your Honour, is - - - No - - -?--- - - - that - - - - - - I'm telling you that?---Okay. So you tell me now - - -?---Yes. - - - what legitimate business expense was that, because if all you've done is cleared the account so that you can have less money and less interest in the family trust account then that is totally contrary to the freezing order; you understand?---Well, my understanding, your Honour - - - No, do you understand? I don't care what your understanding is. I'm telling you what the facts are, because you have said to me consistently that what you do is say, "Right, well, look, I've got a debit here, and because of the debit I'm paying interest. So if I've got money in Yubnub, or if I've got money in Trek North Tours, because of these things I will take that money, I will place it there, that reduces the line of credit, and therefore reduces the interest"; that's what you've done. Now, once the freezing orders came into effect you were not permitted to do that at all. You could only pay legitimate business expenses. Now, you are being taken to the actual payments?---Mmm. And you have been asked what legitimate business expense was that sum going to, and we're waiting for your answer?---In the ordinary course of my business, your Honour - and it was very ordinary - that was my understanding of the exception to the freeze order, was to - business as usual, type scenario. So are you telling me that you now realise that you have totally been in contravention of the freeze order?---If your Honour thinks that, I don't believe I've got any right to disagree, but my understanding was different. It was normal course of "your business", and the normal course of my business was as I've explained. What, that you would use whatever money it was to reduce a debit amount so that you would pay less interest, notwithstanding that debit amount may well have been incurred for non-business reasons?---They were all business reasons, your Honour. No, you've told me well and truly before today, on a number of occasions, that that account - the family trust account - was not there solely for business?---It wasn't specifically there for business, your Honour, but it's pretty much all I've ever used it for - - - No, no, no, no, no?--- - - - and that wasn't a - well, my credit cards were cut off as well. No, you've - you see, this is what we call making it up as you go along. It may be that I do have the break and I let Ms Gover talk to her client, because I'm trying to see how on earth this - well, from what the respondent has said now that the order has not been contravened. (Emphasis added.) 129 The tone, tenor and content of the questions that were asked by the primary judge clearly showed that he did not believe Mr Jorgensen and did not accept that his evidence brought the transfers within the "ordinary and proper course of business" exception in subpara 10(c) of the freezing order. It also appears that the primary judge either did not fully understand Mr Jorgensen's evidence concerning his belief or understanding that the transfers fell within that exception, or that he chose to mischaracterise that evidence. How else could his Honour have come to put to Mr Jorgensen, in one of the highlighted portions of the transcript just extracted, that he understood that Mr Jorgensen had agreed that he had "totally been in contravention of the freeze orders". 130 Another example of the primary judge's obvious attitude to Mr Jorgensen's evidence was an exchange which occurred when counsel for the Ombudsman asked Mr Jorgensen whether any payments that had been made from the frozen bank accounts were payments of wages to the employees of Trek North Tours. While Mr Jorgensen's answers to the questions were not entirely clear or illuminating, he appeared to be saying that the payments from the frozen accounts may have been made to reimburse the Family Trust account in respect of payments of wages made out of that account. The following exchange occurred in the context of that evidence: HIS HONOUR: Mr Jorgensen, I'm getting very, very sick of this. You are playing dumb. You are clearly not dumb. You are obfuscating. You are trying to frustrate. You are not being honest, and this does not go well for you. Listen to the question and answer it. Again. MS WILSON: Mr Jorgensen, on 4 August 2015 $2300 came from the frozen Yubnub account, number 2 on the index of accounts which was 451643835 into account number 1, Leigh Jorgensen Family Trust 503197972 at Suncorp. This was not for remuneration and employee entitlements of the first respondent employees as required by law?---Not specifically. What - I don't understand what - - - HIS HONOUR: Yes, you do. Don't you dare play dumb with me?---Well, if - - - He doesn't want to answer and I'm not going to - - -?---Well - - - - - - force him from here on in. If he wants to keep playing this stupid charade, then that's fine. Just move onto your next question. MS WILSON: I am just putting the case, your Honour - - - HIS HONOUR: I know, and you're - - - MS WILSON: - - - but it seems pointless. HIS HONOUR: - - - being extremely fair and he doesn't want to, as it were, in any way engage in a proper forensic examination as is required by law. And if he doesn't, that's fine. That's fine. I'm watching. I have to make my mind up at the end, and that's the way he wants to do it. I would have thought that would be the most silly thing that anyone would do, but that's fine. You keep going. (Emphasis added.) 131 Counsel for the Ombudsman then put to Mr Jorgensen that none of the payments from the frozen accounts "was for any of the exceptions in the order". Mr Jorgensen responded by saying that he understood that they fell within the "ordinary practice of your business" exception. The question whether Mr Jorgensen honestly and reasonably held that belief was perhaps the central issue in the trial. At that point the primary judge intervened in the questioning and, after putting the terms of the exception in subpara 10(c) of the freezing order to Mr Jorgensen, put the following series of questions (T152 line 40 to T153 line 30): HIS HONOUR: Yes. Must be in the ordinary and proper - - -?---Course of your business. And you say that what you were doing was proper?---Well - - - You're going to be telling me that that's proper, and you're going to be telling me that the business expenses are bona fide and they have been properly incurred. That's what you are going to do, isn't it?---Well, they are. They're proper? You're telling me that every - after everything that we have gone through in the last two days, that you say that all the way you have handled your business has been proper? No loan agreements that are written down, no accounting other than by somehow guesswork off the bank statements. You're saying that's a proper way to conduct a business, aren't you?---It's how I've always ordinarily - - - No. I don't care if it's how you've always done it. It must be proper, not according to the Jorgensen rules of business. It's according to the proper course of a business. And you're going to tell me that what you did was a proper way in which to conduct a business?---What I will say, your Honour - - - No. Are you going to say that what you did was conducting a proper - sorry, that what you were doing was conducting your business in a proper way?---It was in the only way. No. I will ask the question for a third time. Are you going to be telling me that what you did in conducting your business was proper?---I don't know how to answer that because if it's not proper, your Honour, the business would have folded very early. So I don't know how to answer it any other way. I'm sorry. Yes. MS WILSON: Your Honour, I was going to take him through each and every of the exceptions but - - - HIS HONOUR: There is no need. MS WILSON: Thank you. HIS HONOUR: No need to. 132 Tenth, on a number of occasions during the cross-examination of Mr Jorgensen, the primary judge engaged in discussion or debate with counsel, in particular counsel for the Ombudsman, in the presence of Mr Jorgensen. At one point during the cross-examination, as counsel for the Ombudsman took Mr Jorgensen through some entries in relevant bank statements, the primary judge interjected to inquire why another transfer which was apparent in the statement was not the subject of an additional contempt charge. The following exchange occurred in the presence of Mr Jorgensen (T142 line 21 to T143 line 25): HIS HONOUR: Can I just ask - and I don't know if you can answer this, Ms Wilson, but we go to that 9 August withdrawal of $9996.95. MS WILSON: Yes. Yes. HIS HONOUR: Now, that left $672 - - - MS WILSON: Yes. HIS HONOUR: - - - or $673. There was 672 that was transferred to account number 9 on our - - - MS WILSON: Yes. HIS HONOUR: - - - list. Now, that's not a charge. MS WILSON: No. No. It's - - - HIS HONOUR: It's very lucky, isn't it? There is no reason why that shouldn't be a charge. MS WILSON: Your Honour - - - HIS HONOUR: You're being very generous, aren't you, or have I missed - have I - - - MS WILSON: No, no. No, your Honour - - - HIS HONOUR: - - - looked at this wrong? MS WILSON: - - - I - I - - - HIS HONOUR: And I know you haven't laid the charge or Ms Hartigan hasn't. MS WILSON: I am briefed to meet the - what I've got. But - - - HIS HONOUR: Yes. But there's nothing - that looks exactly the same. MS WILSON: And, in fairness - - - HIS HONOUR: And the same one with 14 August where 2990 was taken out, leaving 2216.46. That has also been transferred to account number 9 then. MS WILSON: Yes. Yes. HIS HONOUR: And in both instances it has cleared - it has cleared the account. MS WILSON: Yes, has cleared the account. That's the - that's the MO. HIS HONOUR: Yes. Well, I understand that that's the MO but that's - the point is here in some ways there is no reason why those two shouldn't have been charges either on the reasoning that the Fair Work Ombudsman has had for bringing these charges. 133 It is difficult to see how the primary judge could have considered it to be appropriate to engage in this discussion in the course of the cross-examination of Mr Jorgensen and in his presence. At the very least, it might well have indicated not only that, the primary judge considered that Mr Jorgensen was "lucky" and the Ombudsman had been "very generous" in not charging Mr Jorgensen with further counts of contempt, but also that the primary judge had already formed a view about the propriety of Mr Jorgensen's "MO", by which it may be presumed that his Honour meant Mr Jorgensen's modus operandi or practice in making transfers from the Yubnub account to the Family Trust account. 134 Eleventh, on those occasions when counsel for Mr Jorgensen did object to a question, those objections were often met with hostility or criticism from the primary judge. It suffices to give two examples. On one occasion during cross-examination, counsel for Mr Jorgensen objected to a question asked by counsel for the Ombudsman on the basis that the question misstated Mr Jorgensen's evidence. His Honour's response was as follows (T122 lines 9-18): HIS HONOUR: - - - a question. What on earth do you keep getting up and objecting - you're not here to protect this man. You've got to allow - you've got to ask - make objections when there has been something that is either inherently unfair in that there has been a statement or something that has been mis-described, or the question is not a valid question according to law - - - MS GOVER: Your Honour, the - - - HIS HONOUR: - - - not just when you don't like what it is that Ms Wilson is asking. 135 His Honour did not expressly rule on the objection, but appears to have considered that the question was not unfair. 136 The second example occurred in the course of the re-examination of Mr Jorgensen. As will be seen, the primary judge also questioned Mr Jorgensen extensively during re-examination. At one point, counsel for Mr Jorgensen attempted to raise an issue about his Honour's questioning. His Honour's response was (T185 lines 11-12): HIS HONOUR: Did I ask you or did I ask the witness? Is there an objection that you're taking, or what? What is it that you want to interrupt me for? 137 Counsel then endeavoured to explain to the primary judge that his questions were proceeding on the basis that the business of Trek North Tours had ceased trading on 1 July 2015 and that that had not been established by the evidence. His Honour explained his understanding of the evidence and said "[n]ow is there something that is objectionable in that question, because if there isn't, my goodness, you had better have a good excuse for getting up": (T186 lines 5-7). 138 It is perhaps not difficult to see why counsel for Mr Jorgensen may have been reluctant to object to the primary judge's interventions. 139 Twelfth, as just adverted to, the primary judge also intervened extensively during the re-examination of Mr Jorgensen. 140 The primary judge appears to have taken issue with some of the evidence Mr Jorgensen gave during re-examination and took it upon himself to cross-examine Mr Jorgensen in relation to that evidence. For example, Mr Jorgensen was asked in re-examination about whether he had been able to obtain copies of all relevant invoices of the business and what he had done to try obtain copies of those that he did not have. Mr Jorgensen's evidence about those fairly narrow issues led the primary judge to intervene and question Mr Jorgensen about whether Business Activity Statements had been prepared for the business. Not only did that issue not properly arise from the evidence that Mr Jorgensen had given about trying to obtain copies of the invoices, but his Honour's questions were in the nature of cross-examination and appeared to be somewhat unfair and objectionable. The questioning on this topic included the following (T174 line 14 to T175 line 5): HIS HONOUR: But Mr Jorgensen, you're supposed to do this every year. You're supposed to be able every financial year to have a record of what the business brings in and what the business has expended so that you can look at what is a - what is your revenue, what are your expenses, what are your depreciation so that then you've got in effect a sum by which you can then be taxed. Now that's the whole point is that if you're saying, "Yes, okay I kept all this in my head because at some stage it was going to have to go to the accountant and do that," one would have expected that to happen in a matter of months. Where were your BAS statements for these businesses?---Well the accountants were sent a lot of this material. No, I didn't ask that. I said where are your BAS statements for this business?---Well not with me now, your Honour, I mean - - - Were you actually doing them?---Yes, your Honour. Every quarter?---I believe so. So every quarter you would have had to figure out exactly what it is that all these expenses were?---Yes. Yes. So there would have to be then an easy record. Go to your BAS statements and say, "Right this is what I've got." Then go to your end of year tax assessments and say, "Right this is what I've got." Simple. Why is it now that we're having to look to try and figure out what's happening three years ago? It should have already been done. Have you got an answer for that?---Well I don't - is the question why don't I have all the invoices now? No. Don't try and change the question. This all should have been done. According to you that's what you did. So the whole point of coming here to show that you had made legitimate business expenses and that there had been proper moneys going from one account to another in furtherance of your business, that has already been done. And yet you come here today saying there's all sorts of excuses because, you know, people can't go back three years and so on. I'm saying to you it should have already been done. So why isn't it here?---At the time it was done, your Honour. At the time it was done. So why isn't that here? If it has already been done - - -?---I - I believe the financials are here. 141 That is but one example of the primary judge's intervention during re-examination. In his submissions on appeal, Mr Jorgensen contended that the primary judge's questioning accounted for almost 27 per cent of the questioning that occurred during re-examination. The Ombudsman did not dispute that calculation. It appears to be a relatively accurate calculation of the extent of the primary judge's questioning.

[20]

Conclusions in relation to procedural fairness 142 In its submissions on appeal, the Ombudsman conceded that "the transcript may evidence a tendency on the part of the primary judge towards intervention". That concession is, to say the very least, an understatement. In any event, the Ombudsman submitted that the primary judge's intervention did not support a finding of denial of procedural fairness because the interventions did not "infringe" either the disruption ground or the dust of conflict ground. 143 As for the disruption ground, the Ombudsman contended that the primary judge's interventions did not prevent Mr Jorgensen from presenting his case. The Ombudsman submitted, in that regard, that Mr Jorgensen had been able to put his case consistently throughout the hearing: in his opening submissions, in his evidence and in his closing submissions. It was also said that the primary judge had accepted "key aspects" of Mr Jorgensen's case. Some reliance was also placed on the fact that Mr Jorgensen's counsel did not object to the primary judge's interventions. 144 As for the dust of conflict ground, the Ombudsman contended that the interventions could not be said to have prevented the primary judge from objectively evaluating the evidence because the majority of the interventions related to matters concerning Mr Jorgensen's credit and yet the primary judge's findings did not depend on credit issues. In the Ombudsman's submission, because credit was essentially not in issue, the primary judge's interventions did not result in a miscarriage of justice. 145 The Ombudsman's submissions in relation to both the disruption ground and the dust of conflict ground have no merit. 146 The mere fact that, in a very general sense Mr Jorgensen's case remained consistent throughout the trial, despite the judge's interventions, does not mean that the presentation of his case was not relevantly disrupted. Nor does the fact that the primary judge made some findings in Mr Jorgensen's favour. While Mr Jorgensen may have been able to put his case consistently, the primary judge also consistently challenged and disparaged the evidence given by Mr Jorgensen in support of his case. And while the primary judge may have accepted some minor aspects of Mr Jorgensen's case, virtually all of the critical and determinative issues were resolved against him. 147 The critical adverse findings that the primary judge made against Mr Jorgensen included that any obligation that the business had to reimburse the family trust was not a "business expense"; that any expenses paid out of the Family Trust account after 1 July 2015 were not expenses of Trek North Tours; that in any event the payments to the Family Trust account were not "proper" because the business was not conducted in a "proper" way because there was a mixing of business funds with private funds and inadequate documentation; and that Mr Jorgensen had deliberately ensured that the business of Trek North Tours was no longer a going concern after 1 July 2015 so as to defeat the relevant judgment. A review of the transcript reveals that many, if not most, of the primary judge's interventions occurred while Mr Jorgensen was attempting to deal with those very issues. 148 The primary judge significantly interrupted and disrupted the orderly flow of Mr Jorgensen's evidence concerning what turned out to be the determinative issues. His Honour was also sarcastic, disparaging and dismissive of significant parts of Mr Jorgensen's evidence. His Honour's aggressive and, at times, unfair questioning appeared on occasion to confuse Mr Jorgensen and cause him to make concessions he may not otherwise have made. His Honour also frequently cut Mr Jorgensen off while he was endeavouring to explain critical aspects of his case, in particular his belief that the impugned transfers fell within the "ordinary and proper course of business" exception. The extent and nature of the primary judge's interventions were such that it is impossible to avoid the conclusion that Mr Jorgensen was relevantly impeded from "giving his account in such a way as to do himself justice": cf. Lockwood v Police (2010) 107 SASR 237 at [16]. 149 It is also of limited significance that Mr Jorgensen's counsel did raise any real objections to the primary judge's interventions. Indeed, the suggestion that Mr Jorgensen could have objected to the course taken by the primary judge is somewhat unrealistic. As already noted, the interventions commenced early in the cross-examination and continued at regular intervals throughout the cross-examination. As Basten JA pointed out in Nguyen (at [31]), where the objectionable conduct on the part of the trial judge is an "unfolding situation", it is difficult to identify the point in time at which objection should have been taken. Perhaps more significantly, as was the case in Nguyen, it would have been "awkward, to say the least" for Mr Jorgensen's counsel to intervene in her "opponent's cross-examination to object to the course being taken by the judge": Nguyen at [32] (Basten JA); see also Ward JA at [254]. In those circumstances, as in Nguyen, Mr Jorgensen's right to a fair trial was not "waived" because his counsel did not object. And even if it could be said that the absence of any objection indicated that Mr Jorgensen's counsel did not perceive there to be any procedural unfairness at the time, that alone would not compel a conclusion that the trial was not, in any event, unfair. 150 As for the Ombudsman's submissions concerning the dust of conflict ground, while the primary judge may not have expressly based his findings on Mr Jorgensen's credit or credibility, it is nevertheless readily apparent that his Honour's rejection of critical aspects of Mr Jorgensen's explanation of the relevant payments and the conduct of his businesses generally flowed from the adverse impression that the primary judge had obviously formed of Mr Jorgensen and the credibility and reliability of his evidence. It is difficult to see how else the primary judge could have rejected Mr Jorgensen's evidence that the relevant transfers were made to reimburse the Family Trust account in respect of business expenses of Trek North Tours, or found that the transfers were in any event not made in the "proper" course of the business of Trek North Tours. The primary judge's interventions and the adverse impressions that his Honour formed about Mr Jorgensen and his credibility as a witness are inextricably entwined. The Ombudsman's submission that the primary judge's interventions did not relate to critical aspects of Mr Jorgensen's case accordingly has no merit. 151 In any event, as the earlier analysis of the trial transcript plainly reveals, the extent and nature of the primary judge's interventions clearly supports a finding that his Honour's interventions were an egregious departure from the role of a judge presiding over an adversarial trial and that his Honour's capacity to objectively evaluate the evidence was fundamentally compromised. The primary judge conducted much of the cross-examination of Mr Jorgensen himself and certainly did not observe Mr Jorgensen's evidence in a "calm and dispassionate" way or from a "detached position": cf. Yuill v Yuill [1945] 1 All ER 183 at 189; cited with approval by Ward JA in Nguyen at [162]. Not only did his Honour conduct much of the cross-examination, he also appeared openly hostile to Mr Jorgensen, was at times disparaging and sarcastic, commented on the evidence while it was being given and, not only belittled the case advanced in Mr Jorgensen's defence, but made "obvious to all his profound disbelief in the defence being advanced" cf. Michel at [34]. A fair trial was denied to Mr Jorgensen because the primary judge "closed his … mind to further persuasion, moved into counsel's shoes and 'into the perils of self-persuasion'": Galea at 281, per Kirby A-CJ referring to Sir Robert McGarry, "Temptations of the Bench" (1978) 16 Alra L Rev 406 at 409. 152 It follows that the primary judge's interventions during Mr Jorgensen's evidence were such that he was denied procedural fairness, both on the disruption ground and the dust of conflict ground. The next question is what order or orders should be made as a result of that finding. The answer to that question hinges on whether there has been a miscarriage of justice or whether the "proviso" applies.

[21]

A miscarriage of justice? 153 Section 28(1)(f) of the Federal Court of Australia Act 1976 (Cth), which provides that the Court may, in the exercise of its appellate jurisdiction, grant a new trial, has been construed as authorising the dismissal of an appeal on the basis that, despite error having been found, there was no substantial miscarriage of justice. The "proviso" that an appeal may be dismissed where there has been no miscarriage of justice may apply to a contempt proceeding where the Court is able to conclude that, despite error having been found, the evidence admitted at the trial nevertheless proved beyond reasonable doubt that the alleged contemnor was guilty of contempt as alleged, or where the Court is satisfied that the error could not reasonably be supposed to have affected the result of the trial: Clampett v Attorney-General (Cth) [2009] FCAFC 151; 181 FCR 473 at [49]-[52]; see too Weiss v The Queen [2005] HCA 81; 224 CLR 300 at [45]; Conway v The Queen [2002] HCA 2; 209 CLR 203 at [29]; Windoval Pty Limited v Donnelly [2014] FCAFC 127; 226 FCR 89 at [80]-[95]. 154 This, however, is not a case where the proviso could apply. That is so for two reasons. 155 First, it is not possible to conclude on the basis of the limited material before this Court that, despite the denial of procedural fairness, the evidence admitted at the trial proved that Mr Jorgensen was guilty of contempt as charged. The Court was not provided with the entirety of the record of the trial. This is also a case where the natural limitations of proceeding on the record do not permit the appellate court to attain the requisite satisfaction: Weiss at [41]; OKS v Western Australia [2019] HCA 10; 93 ALJR 438 at [31]. It is also not possible to conclude that the denial of procedural fairness could not reasonably be supposed to have affected the result of the trial. 156 Second, and perhaps more significantly, it is well established that there are some errors that are so fundamental that they cannot come within the proviso even if the appellate court is of the opinion that without the error in question the appellant would inevitably have been convicted: Clampett at [51]. In Wilde v R (1988) 164 CLR 365, Brennan, Dawson and Toohey JJ said (at 372-3): The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso. (Footnotes omitted.) 157 The High Court in Weiss at [45] said that cases where there had been a significant denial of procedural fairness were examples of cases where the court would not dismiss an appeal even though persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt. 158 The error or irregularity in question here was unquestionably serious and fundamental. The denial of procedural fairness occasioned by the primary judge's excessive and unwarranted interventions were such as to "strike at the validity and acceptability of the trial and its outcome": cf. Concrete at [117] (Kirby and Crennan JJ). Mr Jorgensen did not have a proper trial and there has accordingly been a substantial miscarriage of justice. 159 It follows that the appeal must be allowed and declarations and orders made by the primary judge which had the effect of convicting Mr Jorgensen of contempt of court must be set aside. The matter should also be remitted to the Circuit Court for a retrial pursuant to s 28(1)(f) of the Federal Court Act. 160 There remains then the question whether the Court should embark on a consideration of Mr Jorgensen's remaining grounds of appeal. That is an important question given that Mr Jorgensen's case is that, if any of the remaining grounds of appeal are made out, the Court should order, in lieu of the orders made by the Circuit Court, that the Ombudsman's application that Mr Jorgensen be punished for contempt be dismissed.

[22]

Should the Court consider the remaining grounds of appeal? 161 There is an issue concerning the extent to which the Court should embark on a consideration of Mr Jorgensen's remaining grounds of appeal in circumstances where the ground alleging denial of procedural fairness has been upheld. The suggestion, in Concrete, appears to be that where an allegation of bias or denial of procedural fairness is upheld, the Court should not then embark on a consideration of other substantive grounds of appeal, including where the resolution of the substantive grounds would result in the Court itself providing the orders which the court below should have made: see Gummow J at [2], and Kirby and Crennan JJ at [117]; cf. Callinan J at [172]. That appears to be how the relevant observations in Concrete have been interpreted: Nguyen at [13] (Basten JA) and [259]-[260] (Ward JA); Denknis v Commonwealth Bank of Australia [2018] FCA 1908 at [17]-[18]; cf. Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [53] (Gleeson JA, with whom White JA and Emmett AJA agreed). 162 As Ward JA pointed out in Nguyen (at [259]), however, there is an apparent tension between the suggestion in Concrete that the appellate court should not consider the substantive grounds when an allegation of bias or denial of procedural fairness has been upheld and the general principle that an intermediate appellate court ought generally deal with all grounds of appeal, not just what is identified as the decisive ground: cf. Kuru v New South Wales [2008] HCA 26; 236 CLR 1 at [12]. And as Basten JA pointed out in Nguyen (at [13]), where the allegation of bias or denial of procedural fairness has been made out, the result may be that the matter will be remitted to the trial court "possibly without any comment upon the validity or otherwise of the substantive grounds of appeal". That would in some circumstances be an unfortunate or unsatisfactory result. It also appears to be rather harsh to deny an appellant the opportunity to have their case finally resolved in the appellate court on the basis of their substantive grounds of appeal simply because they have also alleged that they were denied procedural fairness at the trial. It is perhaps for that reason that Kirby and Crennan JJ in Concrete suggested (at [117]) that an appellant in such circumstances should be put to an "election" as to which grounds to pursue. In Nguyen, however, Basten JA considered (at [11]) that the suggestion that an appellant be put to an election was "troubling". 163 Fortunately it is unnecessary to address or resolve these apparent tensions or inconsistencies. That is because, for the reasons that follow, Mr Jorgensen's remaining grounds of appeal do not in any event compel or support the making of orders dismissing the Ombudsman's application. Rather, they support the making of orders remitting the matter for retrial. This case is accordingly akin to those cases where an allegation of bias or denial of procedural fairness is made in circumstances where the other appeal or review grounds would also only warrant an order remitting the matter for rehearing. The suggestion appears to be that in such a case it is permissible and appropriate to consider the other appeal or review grounds: see Goodwin v Commissioner of Police [2012] NSWCA 379 at [17]; Toth at [60]. 164 It is also possible to address the legal issues that are raised by the remaining grounds of appeal without considering the evidence in any great detail and without expressing views about factual matters which will need to be considered afresh on remittal to the Circuit Court. It would, in all the circumstances, be desirable to address the legal issues so as to provide guidance for the purposes of the retrial. 165 It follows that in the particular circumstances of this case, it is appropriate to consider Mr Jorgensen's remaining grounds of appeal.

[23]

Ground one - Misconstruction of "ordinary and proper course of … business" exception 166 Mr Jorgensen's contention that the primary judge misconstrued the "ordinary and proper course of business" exception was based in large part on the reasoning of the United Kingdom Court of Appeal in Emmott. In Mr Jorgensen's submission, the facts in Emmott were similar or analogous to the facts of his case and that the reasoning of the court exposes an error or errors in the primary judge's reasons for rejecting Mr Jorgensen's claim that the impugned transactions fell within that exception in subpara 10(c) of the freezing order. 167 In Emmott, a freezing order was made against the respondent which included an exception that the order did not prohibit the respondent from dealing with or disposing of its assets in the "ordinary and proper course of business". The respondent was a company incorporated in the British Virgin Islands which provided legal and consultancy services in Kazakhstan and Azerbaijan. It was alleged that the respondent made two large payments in breach of the freezing order. Both payments were made to companies associated with the sole director of the respondent, Mr Wilson. The first payment was said to be part payment of a loan and the other was said to be a payment for office rental, service and maintenance. The applicant contended that the loan was "fiction" or was "bogus" and that the rent was "grossly inflated" and that the agreement to pay it was a sham. 168 The trial judge found that the payments did not fall within the exception and found the respondent and Mr Wilson guilty of contempt. It would appear that the trial judge found that the loan was genuine and the rent was not inflated, but found nonetheless that the payments were not made in the "ordinary and proper course of business". The factual findings that led the trial judge to that conclusion included that the impugned loan repayment was easily the largest repayment that the respondent had ever made in respect of the loan, that no other loan repayments had been made in the preceding four years and that the rental payment was in fact the payment of rental arrears that had accumulated over time and was also easily the largest rental payment ever made by the respondent. 169 The Court of Appeal allowed an appeal from that judgment. Lord Justice Lewison, with whom Black and Gloster LJJ agreed, said (at [20]) that whether a payment is in the "proper course of business" is likely to depend on the purpose of the payment and that "[i]f the payment is to be made in order to discharge a pre-existing liability of the business incurred in good faith, then it is difficult to see why that would not be the 'proper course of business'". His Honour noted that the trial judge appears to have accepted that the payments were made in the proper course of business and that the question then was whether they were made in the ordinary course of business. 170 Lord Justice Lewison stated (at [21]), in that context, that the question whether payments were "in the ordinary course of business" is not necessarily the same as asking whether the payments themselves were "ordinary". Rather, the exception deals with the course of business and "[i]t is thus the course of business that must be 'ordinary'". His Lordship also accepted (at [22]) that a payment could be made in the ordinary course of business if it was not a "routine" or "recurring" payment and (at [28]) that the exception is not limited to the payment of "trade creditors". 171 The main reason given by Lewison LJ for reversing the decision of the trial judge, however, was that, in focussing on the size and irregular nature of the payments, the trial judge had approached the facts too narrowly and had overlooked a number of other facts. Those facts included, for example, that repayments of the loan were made as and when the respondent was able to "gather in receivables" (at [30]) and that, similarly, the respondent had "allowed rent arrears to accumulate in the light of other demands" (at [31]) and that this accounted for the large and irregular rental payment. 172 Mr Jorgensen submitted, in effect, that the primary judge made the same types of errors as those made by the trial judge in Emmott. 173 The difficulty for Mr Jorgensen is that the decision in Emmott really turned on its own unique facts. Those facts are not entirely analogous to the facts of his case. And as Gloster LJ observed (at [35]), what amounts to payments or disposals in the ordinary course of business is "a highly fact-sensitive question". 174 Nevertheless, the reasoning in Emmott does highlight some difficulties with the primary judge's reasoning in finding that the relevant transfers were not made in the ordinary and proper course of 828 Pty Limited's business. 175 First, it appears that the primary judge did, to an extent, erroneously focus on whether the transfers themselves were "proper" or "ordinary", as opposed to determining whether they were made in the ordinary and proper course of 828 Pty Limited's business. For example, the primary judge appears to have found that the payments were not "proper" because they were "sporadic" and did not correspond with any specific invoices that had been paid out of the Family Trust account. His Honour did not, however, expressly find that the transfers were not made to reimburse the Family Trust account in respect of business expenses that had been paid out of that account in the past (putting aside, for present purposes, the finding that the expenses were the expenses of Trek North Safaris, a finding that will be addressed later). Indeed, while it is not entirely clear, it appears to be implicit in his Honour's reasoning that he accepted that that was the case. 176 His Honour also appears to have accepted that Mr Jorgensen had conducted his business in essentially the same way for some considerable time prior to the making of the freezing order. In other words, such sporadic payments or transfers to the Family Trust account, which did not precisely match any invoices paid out of the Family Trust account, were part of the ordinary way the business had been conducted for some time. Why, then, were the transfers not in the ordinary and proper course of the business simply because they were sporadic, or did not precisely correspond with any particular invoices? In a sense, this was similar to the error made by the trial judge in Emmott, where the trial judge erroneously focussed on the unusual size of the rental payment, but ignored the fact that the relevant business had habitually accumulated rental arrears until it was able to pay them. And as also found in Emmott, a payment can be in the ordinary and proper course of business even if it is not a "routine" or "recurring" payment. 177 Second, the primary judge also appears to have found that the transfers were not proper because of the rather haphazard and unsatisfactory way that Mr Jorgensen conducted his businesses generally. There was no doubt that Mr Jorgensen had habitually mixed business funds with personal funds and had not in any way documented the existence of any loan arrangement that arose as a result of the fact that business expenses were paid out of the Family Trust account. It was equally clear that the reimbursements did not match particular invoices. That appeared to be mainly because Mr Jorgensen only arranged for reimbursement transfers to be made when business revenue was received in the Yubnub account. It also appears that the transfers were made in amounts and at intervals so as to ensure that less interest was payable on debit balances on the Family Trust account. 178 The mixing of business and personal funds and the failure to document loan relationships or transactions were no doubt undesirable or unsatisfactory business practices in a general sense. The same can perhaps be said about the practice of making reimbursement transfers at a time and in a manner that made it difficult to marry-up the reimbursements with particular invoices. That was, however, to some extent beside the point in considering whether the transfers were in the ordinary and proper course of the Trek North Tours business. That is because Mr Jorgensen had always conducted his businesses in that rather undesirable and unsatisfactory way. It was at least open to find that the relevant transfers were made in the ordinary and proper course of what was a poorly or unsatisfactorily run business. The primary judge's focus on the unsatisfactory business practices of Mr Jorgensen appears to have distracted his Honour from addressing the correct question raised by the exception. The question was not whether Mr Jorgensen's business practices were not "proper" in some general business or accounting sense; the question was whether the transfers or payments themselves were made in the ordinary and proper course of the relevant business. 179 Finally, the primary judge's finding that the transfers did not relate to business expenses appears also to have been erroneous, or at least beside the point. As was found in Emmott, the exception is not limited to the payment of "trade creditors", which is similar to saying that it is not limited to the payment of "business expenses". The primary judge appeared to accept that the payment of business expenses out of the Family Trust account gave rise to a "financial obligation, maybe even a legal obligation, on behalf of the business to pay the family trust": Judgment at [61]. The payment of a "financial obligation" can in some circumstances be a payment in the ordinary and proper course of a business even if it is not a business expense. 180 It follows that ground one of the appeal has been made out, at least to the extent that it may be concluded that the primary judge misconstrued the scope of the "ordinary and proper course of … business" exception in the relevant orders. 181 It does not follow, however, as implicitly contended by Mr Jorgensen, that the Court should order that the Ombudsman's application for Mr Jorgensen to be punished for contempt must be dismissed. None of what has just been said about the primary judge's reasoning concerning whether the relevant transfers fell within the exception compels a finding that, on the evidence that was before the primary judge, the relevant transfers did fall within the exception, or that the Ombudsman failed to prove that they did not. Nor, as noted earlier, does the judgment in Emmott compel any such conclusion. 182 The primary judge's errors in construing the scope of the "ordinary and proper course of business" exception were akin to the situation where a trial judge is found to have misdirected a jury about a material legal issue. The appropriate order in such circumstances, subject to the application of the proviso, is ordinarily that the conviction be set aside and the matter be remitted for retrial. 183 That would appear to be the appropriate order arising from the success of this ground of appeal. There is no scope for the application of the proviso. For the reasons given earlier it is not possible to conclude on the basis of the material before this Court that, despite the primary judge's error in construing the scope of the "ordinary and proper course of business" exception, the evidence admitted at the trial proved that Mr Jorgensen was guilty of contempt as charged, or that the error concerning the scope of the exception could not reasonably be supposed to have affected the result of the trial.

[24]

Ground two - Reliance on Exhibit 4 and the findings based on it 184 Ground two of Mr Jorgensen's grounds of appeal raises three issues: first, whether the primary judge "impermissibly" used Exhibit 4 having regard to the particular circumstances in which it was tendered and relied on in the court below; second, whether findings of fact made by the primary judge on the basis of Exhibit 4 were erroneous; and third, what was the effect or impact, if any, of the findings of fact based on Exhibit 4. 185 The circumstances in which Exhibit 4 came to be tendered and relied on were somewhat unsatisfactory and potentially problematic. 186 Exhibit 4 was tendered by counsel for the Ombudsman on the third day of the hearing, just prior to the completion of the cross-examination of Mr Jorgensen. The basis of the tender was explained in the following terms by counsel for the Ombudsman (T159 lines 1-7): MS WILSON: Thank you, your Honour. Just as a matter of housekeeping, which I've discussed with my learned friend. In the enforcement hearing there was - Mr Jorgensen was cross-examined on a letter that he provided from Mr Mudit Jain & Associates, chartered accountants, from Punjab, India. It says that - though it was tendered but it seems to have not been included in the material. My learned friend has no objection to me handing that up so - to make that material complete, and that's what I do … 187 The Ombudsman had already tendered the transcript of the enforcement hearing and a number of other documents that were produced or referred to in the course of that hearing. Mr Jorgensen had produced the letter from the accountant at the enforcement hearing and had been questioned about it. It was implicit in what counsel for the Ombudsman said that his Honour could have regard to Exhibit 4 as being a document about which Mr Jorgensen had given evidence at the enforcement hearing. That would appear to be what was meant when it was said that the document made "that material complete". Counsel did not, however, at that point at least, otherwise explain to the primary judge what the relevance of the letter was. As also can be seen from what was said, counsel for Mr Jorgensen did not object to the tender of the letter, or seek any limitation or restriction on its use. 188 Counsel for the Ombudsman did not cross-examine Mr Jorgensen about Exhibit 4. In those circumstances, it was probably not open to counsel for Mr Jorgensen to re-examine Mr Jorgensen about it. It perhaps would have been open to counsel for Mr Jorgensen to seek leave to ask Mr Jorgensen questions about the letter, though no such leave was sought. That is perhaps understandable in circumstances where nothing had been said about the relevance of the letter or what, if any, factual findings might be made about it or its contents. 189 It does not appear that counsel for the Ombudsman referred to Exhibit 4 in the closing submissions that were made to the primary judge. There is no indication that the Ombudsman relied on the letter in any way in seeking to make out its case. That is perhaps consistent with the suggestion that the document had been tendered merely as a matter of "housekeeping". 190 It was the primary judge who first raised the potential significance of Exhibit 4. That occurred in the course of the closing submissions by counsel for Mr Jorgensen. It is readily apparent that his Honour considered that Exhibit 4 was evidence of the fact that Trek North Tours had ceased its business operations in March 2015, or at least by 1 July 2015. Counsel for Mr Jorgensen endeavoured to deal with that proposition. She submitted, amongst other things, that Mr Jorgensen had not been cross-examined about the document in the contempt proceedings, that the proposition that Trek North Tours had ceased business operations in March 2015 was not consistent with Mr Jorgensen's evidence, and that it was possible that the reference in the letter to March 2015 may have been a "typo" given that 828 Pty Limited, which was the company that operated the business of Trek North Tours, was not wound up until June 2016. Counsel in due course took the primary judge to the evidence that Mr Jorgensen gave about the letter during the enforcement hearing. That evidence was not consistent with the proposition that the business of Trek North Tours ceased in March 2015. 191 In her submissions in reply, counsel for the Ombudsman did not take up the proposition advanced by the primary judge to the effect that Exhibit 4 indicated that Trek North Tours had ceased its business operations in March 2015 or by 1 July 2015. Indeed, the submissions advanced on behalf of the Ombudsman were to the effect that no reliance could be placed on the truth of any of the statements in the letter. Counsel said (T260 lines 17-25): MS WILSON: Yes. That's right. And the accountant's letter was handed up by the respondent to provide a complete - their accountant's letter was handed up yesterday to provide a complete record of the enforcement hearing. We note that we can see by the cross-examination of the respondent at the enforcement hearing that it was a document that was relied on by the respondent. This letter does nothing more than just add more mud to muddied waters. For example, in this letter it says there's no liabilities of the company. And now in his affidavit he says there are liabilities. It's prima facie a hearsay document. You can't establish the truth behind that. But it is an assertion that has been made to the court. 192 It is not immediately apparent why counsel for the Ombudsman suggested that the letter was "prima facie a hearsay document" given that it could most likely be considered to be a business record for the purposes of the business records exception to the hearsay rule in s 69 of the Evidence Act 1995 (Cth). In any event, the point remains that the Ombudsman did not rely on Exhibit 4 as proving the truth of any statement made in it, including that the Trek North Tours business had ceased to operate by March 2015. 193 Despite the circumstances in which Exhibit 4 was tendered and the approach taken to it by the parties, it is readily apparent that the primary judge relied heavily on it in making significant adverse findings against Mr Jorgensen. Those findings included that Trek North Tours had "effectively shut up shop and allowed Trek North Safaris to take over its operations" (Judgment at [78]-[79]); that "from 1 July 2015, the business of Trek North Tours was not a going concern" (Judgment at [80]); that any payments made after 1 July 2015, even if they were "bona fide business payments and in the ordinary and proper course of running the business", were made on behalf of Trek North Safaris, not Trek North Tours (Judgment at [81]-[82]); that therefore there "could be no exceptions under order 10(c) for the business, Trek North Tours" (Judgment at [85]); and that Mr Jorgensen had "simply let Trek North Tours 'wither on the vine' so as to defeat the judgment" and had made a "deliberate decision … to ensure that Trek North Tours was no longer a going concern from 1 July 2015" (Judgment at [83] and [85]; also see Judgment at [24]-[26]). 194 If the primary judge made any finding to the effect that Mr Jorgensen knowingly impeded the administration of justice, an issue that is considered later in the context of ground four of Mr Jorgensen's amended notice of appeal, the findings made by his Honour based on Exhibit 4 seem to have been central to that finding. That is apparent from paragraph [76] of the Judgment, where his Honour effectively introduced his consideration of Exhibit 4 by stating that there was an "even more fundamental problem" with Mr Jorgensen's conduct which "goes to the heart of whether he has knowingly impeded the administration of justice". 195 The Ombudsman contended that the primary judge did not rely on Exhibit 4 in making any of the findings just referred to. In the Ombudsman's submission, the primary judge made those findings based on other "objective evidence" and only used Exhibit 4 as a "chronological prompt". The difficulty with that submission is that it is not supported by a fair reading of the primary judge's reasons. The primary judge refers extensively to Exhibit 4, but only obliquely refers to, and does not identify, the "objective evidence" with which Exhibit 4 was said to correspond. More fundamentally, the Ombudsman was unable to identify the objective evidence which the primary judge supposedly relied on. There was no evidence capable of supporting the primary judge's findings. 196 Was the primary judge's reliance on Exhibit 4 in making these findings "impermissible" as alleged by Mr Jorgensen? Mr Jorgensen's main contention in that regard was that the document was "admitted on a limited basis that did not permit it to be used to establish the truth of its contents". That contention is at best doubtful. Despite the rather unclear and ambiguous statements made by counsel for the Ombudsman concerning the tender of the exhibit, no order limiting the use to which the document could be put, either pursuant to s 136 of the Evidence Act or otherwise, was sought by counsel for Mr Jorgensen or made by the primary judge. 197 It was, however, procedurally unfair for the primary judge to make the findings he did based on Exhibit 4. Mr Jorgensen was not cross-examined about Exhibit 4 by counsel for the Ombudsman. Nor did the primary judge question Mr Jorgensen about the document. It was never put to Mr Jorgensen that he had deliberately ensured that the business of Trek North Tours was no longer a going concern from 1 July 2015 and had effectively transferred the business to Trek North Safaris from that date. It certainly was not squarely put to Mr Jorgensen that he did that to defeat the judgment and orders that had been made against 828 Pty Limited. Nor did the Ombudsman make any submission to the primary judge that he should make any such findings. The Ombudsman's pleaded case also did not include any such allegation. It was never put to Mr Jorgensen in cross-examination that the transfers related to business expenses of Trek North Safaris, instead of Trek North Tours as he had claimed. Nor did the Ombudsman invite the primary judge to make any such finding. 198 It is true that the primary judge did raise Exhibit 4 with counsel for Mr Jorgensen in the course of her final submissions. His Honour did suggest that it supported a finding that the business of Trek North Tours had ceased in March 2015. Counsel was able to make submissions on that point. Those submissions included that Mr Jorgensen had not been cross-examined about Exhibit 4 or the findings that were said to flow from it. In any event, the point remains that Mr Jorgensen himself was never given the opportunity to respond to or address any of the findings of fact that the primary judge ultimately made in relation to Exhibit 4. 199 There is no question that the primary judge was obliged to afford Mr Jorgensen procedural fairness. Procedural fairness extends to require a decision-maker to identify to a person who may be affected by a decision any adverse conclusion which has been arrived at which would not obviously be open on the known material, though the decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 at [29]. There will be a denial of procedural fairness and a substantial miscarriage of justice where a trial judge makes findings of impropriety against a witness in circumstances where the witness was not given an opportunity to address that issue in cross-examination: see generally Sullivan v Trilogy Funds Management Ltd [2017] FCAFC 153; 255 FCR 503 at [265], [325]. 200 While Mr Jorgensen's notice of appeal did not expressly or directly contend that he was denied procedural fairness because he was not given an opportunity to respond to the adverse findings that the primary judge made based on Exhibit 4, that was the general tenor of his submissions. He submitted, amongst other things, that the primary judge's use of Exhibit 4 was impermissible because he was not given the opportunity to comment on it, or to affirm or deny the truth of the hearsay assertions in it, including that Trek North Tours discontinued its business operations in March 2015. That was tantamount to an allegation of denial of procedural fairness. 201 In any event, and putting issues concerning procedural fairness to one side, there is considerable merit in Mr Jorgensen's submission that the findings made by the primary judge based on Exhibit 4 were erroneous. The letter from the accountant was signed and dated 1 March 2016. It concerned 828 Pty Limited and did not specifically refer to the business of Trek North Tours. While it does state that "[t]he Company has discontinued its business operations with effect from March 2015", when considered in context, it is fairly obvious that that date is a typographical error and should read "March 2016", which was the date of the letter. March 2015 was some months before the default judgment was entered against 828 Pty Limited and some months before the business of Trek North Safaris was established. There was no evidence to suggest that no business at all operated between March 2015 and 1 July 2015. Aside from the letter, there was no evidence whatsoever that 828 Pty Limited discontinued its business operations as early as March 2015, and no evidence whatsoever that the business of Trek North Tours ceased months prior to the default judgment and months prior to the commencement of the business of Trek North Safaris. Mr Jorgensen resigned as a director of 828 Pty Limited on 1 March 2016, the date of the letter, and the company was wound up some months later. It is highly unlikely that it would have ceased business operations in March 2015 and yet not be wound up for another 16 months. 202 Putting the statement about the company ceasing business in March 2015 to one side, Exhibit 4 otherwise provided no basis for an inference or finding that the business of Trek North Tours ceased on 1 July 2015. 203 The primary judge suggested that the letter seemed to "correspond with what the objective evidence is": Judgment at [78]. As has already been noted, however, his Honour did not identify what that "objective evidence" was. Nor was the Ombudsman able to take the Court to any compelling evidence which supported the findings made by the primary judge in relation to Exhibit 4. 204 Mr Jorgensen was questioned, both at the enforcement hearing and by the primary judge, about the establishment of the business Trek North Safaris, the relationship of that business with the business of Trek North Tours and the date that the business Trek North Tours ceased to operate. While Mr Jorgensen's evidence about those matters was fairly unclear and unimpressive, he did not at any time suggest or concede that Trek North Tours "shut up shop" on or by 1 July 2015. Indeed, the general tenor of his evidence was that the two businesses coexisted for some period of time and were not identical. While there was no dispute that Trek North Safaris commenced business on 1 July 2015, it did not necessarily follow that the Trek North Tours' business ceased on that day. 205 The Ombudsman also contended that the primary judge's finding that the business of Trek North Tours ceased on 1 July 2015 was also supported by an analysis of the relevant bank statements. It is, however, by no means clear that the primary judge engaged in any analysis of the bank statements. In any event, the bank statements alone are not capable of supporting the finding, particularly having regard to the evidence which clearly indicated that Mr Jorgensen operated the various accounts he controlled without any particular regard to the person or entity who was the account holder. 206 Even if, contrary to this conclusion, there was some evidentiary basis for finding that Trek North Tours ceased to carry on business on 1 July 2015, there is an even more fundamental difficulty with the primary judge's finding that the relevant transfers therefore related to the reimbursement of the business expenses of Trek North Safaris, as opposed to business expenses of Trek North Tours as Mr Jorgensen had claimed. That difficulty is that Mr Jorgensen's case, as ultimately articulated in his submissions to the primary judge, was that the impugned transfers reimbursed the Family Trust account in respect of the payment of two large invoices issued by Queensland Rail for $9,937.60 and $24,628.69. Those invoices were dated 13 June and 30 June 2015 respectively. The later invoice dated 30 June 2015 for the amount of $24,628.69 was addressed to Trek North Tours. The invoice dated 13 June 2015 was addressed to Trek North, Tudoods Pty Ltd. Mr Jorgensen's evidence was to the effect that the reference to Tudoods Pty Limited was a mistake by Queensland Rail and this invoice related to the business of Trek North Tours. There was no basis for concluding that these invoices, both of which self-evidently referred to the provision of services prior to 1 July 2015, represented business expenses of Trek North Safaris, as opposed to Trek North Tours. 207 One final observation should be made about the primary judge's reasoning based on the finding that the business of Trek North Tours ceased on 1 July 2015. If that was in fact the case, it would almost certainly follow that the funds which were received into the Yubnub account during July 2015 and immediately prior to the impugned transfers from that account in August 2015 were the property of Yubnub trading as Trek North Safaris. The funds could not, in those circumstances, be considered to be the property of 828 Pty Limited. It would seem to follow that the freezing order would not have applied to those funds, given that the order only restrained 828 Pty Limited from disposing of its assets. It is unnecessary and perhaps undesirable to express any conclusion in relation to this issue given that it was not the subject of any consideration in the court below. As discussed earlier, the proceedings in the court below were conducted on the basis that the funds in the Yubnub account were the property of 828 Pty Limited. This issue does, however, rather expose fundamental difficulties with the primary judge's reasoning. 208 It follows that Mr Jorgensen has made out ground two of his amended notice of appeal. The primary judge impermissibly relied on Exhibit 4 because his Honour made findings based on that exhibit without giving Mr Jorgensen the opportunity to address that exhibit or the findings that were based on it. His Honour also made findings that were not supported by Exhibit 4 or any other evidence. 209 The appropriate order to make in relation to these errors is to set aside the order which had the effect of convicting Mr Jorgensen of contempt and remit the matter for retrial for the same reasons as given in relation to ground one.

[25]

Ground three - Knowingly impeded the administration of justice 210 This ground of appeal essentially raised two questions. The first question was whether the primary judge found, beyond reasonable doubt, that in authorising or directing the impugned transfers, Mr Jorgensen knowingly impeded the administration of justice. The second question, which only arose if the primary judge did find that Mr Jorgensen knowingly impeded the administration of justice, was whether the primary judge erred in so finding. As will be seen, however, the more fundamental issue raised by these questions is whether the primary judge misdirected himself or otherwise proceeded on the basis of a misconception or misunderstanding concerning this element of the contempt charges faced by Mr Jorgensen. 211 There could be little doubt that the primary judge accepted that, to convict Mr Jorgensen of the contempt charges brought by the Ombudsman, it was necessary for him to be satisfied beyond reasonable doubt that Mr Jorgensen knowingly impeded the administration of justice. His Honour accepted the Ombudsman's submission that that was an essential element of the contempts with which Mr Jorgensen was charged: Judgment at [46]. 212 It is in those circumstances somewhat surprising that the primary judge's reasons contain no express finding or statement that he was satisfied beyond reasonable doubt that Mr Jorgensen had knowingly impeded the administration of justice. His Honour referred (Judgment at [76]) to a "fundamental problem" with what Mr Jorgensen had done which "really goes to the heart of whether he has knowingly impeded the administration of justice", however he never expressly concluded that he was satisfied beyond reasonable doubt that that was the case. 213 The Ombudsman contended that the primary judge's finding that Mr Jorgensen knowingly impeded the administration of justice was "implicit in the reasons and consistent with the primary judge's ultimate findings". The difficulty with that submission, however, is that if the finding is implicit in the primary judge's reasons and ultimate finding of guilt, the Ombudsman did not identify exactly what the basis of any such finding was. Nor is that readily apparent from his Honour's reasons. 214 To the extent that it is possible to understand the primary judge's reasons concerning the element of knowingly impeding the administration of justice, it would appear that his Honour found that the element was made out because Mr Jorgensen had deliberately ensured that Trek North Tours was no longer a going concern after 1 July 2015 so as to defeat the judgment and orders that had been made against 828 Pty Limited. That appears to be the general tenor and effect of paragraphs [76] to [85] of the primary judge's reasons. His Honour's findings in that regard also feature prominently in his reasons or remarks on sentence. 215 If that was the basis of the primary judge's finding that Mr Jorgensen had knowingly impeded the administration of justice, it gives rise to three fairly fundamental problems. 216 The first problem is that, for the reasons already given, the primary judge's finding that Trek North Tours ceased its business on 1 July 2015 was not open on the evidence. It was not a finding that was open on the basis of Exhibit 4, even if it was permissible for his Honour to use that exhibit for the purpose of making that finding, and was not supported by any other evidence. 217 The second problem is that, even if that finding was open on the evidence, the contempt charges that had been brought against Mr Jorgensen did not allege that he had knowingly impeded the administration of justice by causing Trek North Tours to cease business on 1 July 2015. The charges against Mr Jorgensen were that, knowing of the freezing order, he caused transfers to be made which breached that order. That was the apparent basis of the allegation that he knowingly impeded the administration of justice. It does not appear that the Ombudsman ever pleaded or put its case against Mr Jorgensen on the basis that he deliberately caused Trek North Tours to either "shut up shop" or "wither on the vine" so as to ensure that the judgment against 828 Pty Limited could never be enforced. 218 The third difficulty is that there was no direct evidence that Mr Jorgensen knowingly impeded the administration of justice by acting in a way that was intended to defeat the judgment and penalty orders that had been made against 828 Pty Limited. The only basis upon which such a finding could have been made was that it was an inference that was drawn from the evidence as a whole. To be satisfied beyond reasonable doubt that Mr Jorgensen was guilty of contempt, however, it was necessary for the primary judge to be satisfied that that inference was the only reasonable inference and that no other reasonable inference consistent with innocence was open or available on the evidence. There is no indication in the judgment of the primary judge that his Honour asked himself or addressed that essential question. 219 There is another possible explanation or basis for the primary judge's finding that Mr Jorgensen had knowingly impeded the administration of justice, if in fact any such finding was made. That explanation is that his Honour was proceeding on the basis that this element would be made out if it was simply proved beyond reasonable doubt that Mr Jorgensen authorised or directed the relevant transfers from the frozen accounts and those transfers breached the freezing order. 220 The critical paragraph of the primary judge's reasons which suggest that his Honour was proceeding on this basis is paragraph [86], in which his Honour concluded that "on the three aspects that I have spoken of, I find that the [Ombudsman] has proven beyond reasonable doubt that the exceptions do not apply". It appeared to be on that basis that his Honour convicted Mr Jorgensen: see Judgment at [87]. The primary judge's reference to the "exceptions" in the Judgment at [86] is presumably a reference to the exceptions in para 10 of the freezing order, though the only real exception that was in issue was the "ordinary and proper course of business" exception in subpara 10(c) of the freezing order. The primary judge's reference to the "three aspects I have spoken of" would appear to be a reference to the three reasons he had given for why the relevant transfers did not fall within the exception in subpara 10(c) of the freezing order: first, that transfers were not the payment of business expenses; second, that the transfers were not in any event "proper"; and third, that if the transfers were in respect of business expenses, they were the expenses of Trek North Safaris, not Trek North Tours. 221 If that was the basis of the primary judge's finding that Mr Jorgensen had knowingly impeded the administration of justice, his Honour was acting on the basis of a fundamental misunderstanding of this element of the contempt charges against Mr Jorgensen. 222 The freezing order was made against 828 Pty Limited. Mr Jorgensen was not a party to and therefore was not directly bound by the freezing order. The authorities referred to earlier in these reasons clearly establish that a third party who is not bound by a court order will only be liable for contempt arising from a breach of that order if it is found that they engaged in conduct which was intended to frustrate, thwart or subvert the purpose of the order: see in particular CCOM at [14]-[17]; Sigalla at [14]-[17], [28]; Admark at [23]-[27]. That involves proof that the alleged contemnor not only knew about the order, but also knew that their conduct involved or gave rise to a breach of the order. A party not bound by the order will not be liable for contempt if they had an honest but mistaken belief as to the meaning or operation of the order which, if correct, would mean that their conduct could not amount to an interference with the operation of the order. 223 It follows that, to convict Mr Jorgensen of the charges of contempt brought by the Ombudsman, it was not sufficient for the primary judge to find, beyond reasonable doubt, that "the exceptions do not apply": Judgment at [86]. It was not enough for his Honour to be satisfied beyond reasonable doubt that Mr Jorgensen authorised and directed the transfers and that the transfers breached the freezing order. It was also necessary for the primary judge to be satisfied beyond reasonable doubt that Mr Jorgensen knew that the transfers breached the freezing order. 224 Moreover, it is abundantly clear that Mr Jorgensen's case before the primary judge was that he believed that the impugned transfers fell within the "ordinary and proper course of business" exception in order 10(c). That was the effect of his affidavit evidence and his evidence during cross-examination. It was, in those circumstances, necessary for the primary judge to be satisfied beyond reasonable doubt that Mr Jorgensen did not honestly entertain any such a belief. 225 The primary judge made no such findings about Mr Jorgensen's knowledge or belief. His Honour did not find beyond reasonable doubt that Mr Jorgensen knew that the transfers breached the freezing order, or that Mr Jorgensen did not honestly believe that the transfers fell within the exception in subpara 10(c) of the freezing order and therefore did not breach the order. 226 It follows that, whichever way one looks at it, the primary judge erred in the way he addressed the critical element of the charges of contempt that had been brought against Mr Jorgensen. To the extent that his Honour made any finding that he was satisfied beyond reasonable doubt that Mr Jorgensen had knowingly impeded the administration of justice, which itself is questionable, that finding was in any event based on an incorrect understanding of the nature and elements of charges of contempt that the Ombudsman had brought against Mr Jorgensen. If his Honour found that Mr Jorgensen knowingly impeded the administration of justice because he had deliberately closed the business of Trek North Tours by 1 July 2015 so as to defeat the judgment against 828 Pty Limited, that was not the basis of charges that had been brought by the Ombudsman and was not, in any event, a finding that was open on the evidence. If his Honour found that Mr Jorgensen knowingly impeded the administration of justice merely because he was responsible for the transfers which breached the freezing ordes, his Honour misdirected himself and proceeded on the erroneous basis that it was not necessary for him to be satisfied that Mr Jorgensen knew that the impugned transfers breached the order and that Mr Jorgensen did not entertain an honest belief that the transfers fell within the exception in subpara 10(c) of the freezing order as he claimed. 227 To be fair, it would appear to be clear that the primary judge was led into error by the way the Ombudsman had put its case. The statement of the contempt charges contained in the Ombudsman's application simply alleged that Mr Jorgensen knew about the freezing order and had authorised and directed the transfers which were alleged to have breached the order. The statement of the charges did not include any allegation that Mr Jorgensen knowingly impeded the administration of justice, or any allegation that Mr Jorgensen knew that the transfers breached the freezing order or had otherwise engaged in conduct which was intended to frustrate, thwart or subvert the freezing order. And while the Ombudsman eventually put to the primary judge that it was necessary to prove that Mr Jorgensen had knowingly impeded the administration of justice, it does not appear that the Ombudsman put to the primary judge that to make any such finding, he had to be satisfied beyond reasonable doubt that Mr Jorgensen knew that the transfers breached the freezing order. Indeed, it appears that the Ombudsman was also proceeding on the erroneous basis that it was not necessary to prove that Mr Jorgensen intended to disobey the freezing order, or that he knew that the transfers were in breach of the freezing order. That is apparent from the submissions initially put by the Ombudsman in relation to the appeal. 228 The primary judge's errors in addressing this essential element of the contempt charges gave rise to a substantial miscarriage of justice. It is not possible to conclude that, despite the primary judge having misdirected himself concerning this essential element of the charges, the evidence admitted at the trial nevertheless proved beyond reasonable doubt that Mr Jorgensen did knowingly impede the administration of justice. As discussed earlier, this Court was not provided with the entire trial record and this is in any event a case where the natural limitations of proceeding on the record would have prevented the Court from attaining the requisite satisfaction. Nor could it be suggested that the primary judge's errors could not reasonably be supposed to have affected the result of the trial. There is accordingly no room for the operation of the proviso. 229 For the reasons given in the context of the other grounds of appeal, the appropriate order to make in respect of this successful appeal ground is to set aside the primary judge's order which had the effect of convicting Mr Jorgensen of contempt and remit the matter to the Circuit Court for retrial. 230 It is not appropriate for the Court to order that the Ombudsman's application be dismissed. That is because the Court cannot, on the basis of the material before it, be satisfied that it would not have been reasonably open to the primary judge to convict Mr Jorgensen on the evidence before him had he properly directed himself concerning the elements of the charges.

[28]

Conclusion and disposition 235 The trial of Mr Jorgensen in respect of the charges of contempt brought by the Ombudsman substantially miscarried for at least four reasons. 236 First, the primary judge's excessive, unwarranted and inappropriate interventions in the course of the cross-examination of Mr Jorgensen constituted a denial of procedural fairness (appeal ground four). 237 Second, there was also a denial of procedural fairness because the primary judge made a number of material findings based on Exhibit 4 in circumstances where Mr Jorgensen was not cross-examined about either the exhibit or the findings that were made in respect of it (appeal ground two). 238 Third, the primary judge erred or misdirected himself in relation to the meaning and scope of the "ordinary and proper course of … business" exception in the freezing order (appeal ground one). 239 Fourth, the primary judge misdirected himself in relation to the critical element of the charges of contempt that had been brought: that Mr Jorgensen knowingly impeded the administration of justice (appeal ground three). To the extent that his Honour made any finding that Mr Jorgensen had knowingly impeded the administration of justice, that finding either did not relate to the charges that had been brought against Mr Jorgensen, or was based on an erroneous belief that it was not necessary for the Ombudsman to prove that Mr Jorgensen knew that the transfers breached the freezing order. 240 The proviso does not apply to any of the errors made by the primary judge. The appropriate orders to make are to set aside the declarations and order that had the effect of convicting Mr Jorgensen of contempt and remitting the matter to the Circuit Court for retrial. Given that one of the errors involved the denial of procedural fairness arising from excessive intervention, it would be appropriate for the matter be tried by a Circuit Court judge other than the primary judge. 241 The sentence appeal and the Ombudsman's cross-appeal should be dismissed. 242 The Ombudsman should be ordered to pay Mr Jorgensen's costs, including the costs of the proceedings before the primary judge. 243 The undertakings given by Mr Jorgensen and the stay and bail orders made by Reeves J on 11 May 2018 were expressed as being operational until the determination of this appeal. For more abundant caution, however, orders should be made releasing Mr Jorgensen from his undertakings and directing that his passport be returned to him upon request. I certify that the preceding two hundred and forty-three (243) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Greenwood, Reeves and Wigney.

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